-: SJC-13625,
in the matter of an impounded case.
-: Okay, Attorney Russell.
-: Good morning. Good morning, Your Honors.
May I please the court, Lauren Russell,
for the juvenile appellant.
Children accused of committing delinquent acts,
admit to sufficient facts
and agree to abide by conditions of probation,
imposed through a continuance without a finding
for a variety of reasons.
Among others, to secure their release
from the Department of Youth Services,
or to be able to return to school
or to protect their parents
from having to attend multiple court dates
leading up to a trial date.
Through that process, they do not admit guilt,
and a judge does not determine guilt,
even if a judge scrupulously honors the procedures required
to protect the validity
of the waiver of the rights they're making.
Justice Georges: Counsel, can I press you on something?
-: Sure.
-: So in Wallace W. we said,
if this was after a delinquency adjudication
and there was a CWOF that it would count, right?
So all of those, the parade of horribles
that you just described, that wasn't this case.
This case was on for trial,
it was on for bench trial, right?
-: [Attorney Russell] Well, first it was on for arraignment.
-: No, no.
The day of the CWOF, it was on for trial.
-: It was on for an arraignment
when the CWOF had already been dismissed, a CWOF-
-: I'm talking about the CWOF at issue.
The one when he was 16,
it was on for trial.
-: [Attorney Russell] I actually don't know
that the CARI wasn't clear to me on that fact that-
-: Did you listen to the colloquy?
Did you listen to the proceeding?
-: I did not.
The Wareham Juvenile Court case
that resulted in a CWOF in December 20,
sorry, June, 2022. -: Yeah.
-: I did not listen to. -: That's the one
we're talking about, right?
-: Well, all that was known
when my client was faced arraignment
for a minor misdemeanor 18 months later,
all that was known to anyone
was that he had a CWOF on his record.
And I don't think there was any information
provided to the court by the Commonwealth
which was the party (faintly speaks).
-: But at least as we're sitting here today
and trying to resolve this case,
don't we have to look at what happened
with that prior CWOF?
-: I think that this court should set a rule
for what to do when a CARI
is before the court,
which is really all that will most likely be,
before the court when the Commonwealth moves
for arraignment on a minor misdemeanor.
-: Okay, well, let me just,
let's say I disagree with you,
but let's just say,
let's just talk about the CWOF.
Okay, so he was on for trial
and prior to bench trial,
the Commonwealth and the juvenile's lawyer come in
and say, we have, a disparate tender on disposition,
but we have an agreement as to the index CWOF.
And in Wallace W. we said,
if that matter had gone to trial
and he was found adjudicated delinquent,
and the court after the delinquency finding
imposes a CWOF, that would count for Wallace W. purposes.
-: Yes. -: Why is it
that it makes any practical sense
that because it happened a half an hour before,
where during the course,
and I know you dismissed the procedural safeguards,
but during the hearing, his mother's there,
he's represented by counsel.
The juvenile court judge goes through
all of the important constitutional rights
that he's giving up,
his right to be convicted
by a jury unanimously, or a judge,
his right to cross examine
and confront the witnesses,
his right to present his own defense
and testify in his own behalf.
She gave all of the immigrate, all of the things,
and importantly, the Commonwealth read into the record
what they would have proven had the matter gone to trial.
And he had to allocute to that,
and he does allocute
and says that he agrees
with the Commonwealth's recitation of the facts
underlying the assault and battery.
Why isn't that tantamount to what we said in Wallace W.
has to be proven beyond a reasonable doubt
because he could be found guilty on that allocution?
-: Well, I think, if that was the stipulation that was made,
I'm not sure that that's an admission to sufficient facts.
An admission to sufficient facts
is by definition not an explicit acknowledgement of guilt.
As someone who's practiced in juvenile court,
I've seen an awful lot of admissions to sufficient facts
that proceed by the prosecutor reciting the facts
that they anticipate being able to prove at trial.
And the juvenile being asked,
"Do you agree that if this case went to trial,
you could be found delinquent?"
And the juvenile by saying yes to that
is not stipulating to the truth of the facts,
is not saying that he wouldn't have a defense
that he would present at trial.
He's saying that he's waiving the right,
one of the rights that Your Honor did not mention
is the right to be convicted
based on proof beyond a reasonable doubt.
So he's waiving that right by tendering a plea.
-: And he agreed to that. -: Right.
-: He agreed in colloquy. -: But,
by waiving the right
to proof beyond a reasonable doubt
to this charge,
one could not be waiving their right
to jurisdiction on a future charge.
You can't, jurisdiction can't be conferred through waiver.
So in Wallace W. this court said,
that proof beyond a reasonable doubt is critical.
And when a CWOF follows from a trial verdict
or a delinquent plea, where the stipulation is not,
I agree that if this case went to be meant to trial,
I could be found delinquent.
But yes, I agree that those are the facts.
I stipulate to the truth of those facts alleged
by the Commonwealth during the plea colloquy.
That's a different story.
That's not a CWOF after an admission to sufficient facts.
-: Well, at least as a practical matter,
help me with this then.
The whole point that we've said in Wallace W.
in the criminal justice reform was,
we didn't want juveniles
because of their impetuous nature
and the fact that they're not,
their heads aren't fully formed, their cognitive abilities,
that we want to be able to give them a strike essentially.
And the whole point of that
is that they get enough of a taste
that they say, "I never want to come back here."
And in this case,
the index case we're talking about
is an assault and battery
with a slap across the face of the victim,
which is what was read into the record
during the colloquy.
He's 16 years old.
And we say, okay then that for purposes
of don't come back,
let's just assume for the sake of argument.
But now he's back
and now he's back,
he's back on this two count delinquency complaint.
And that prior case was adjudicated with this colloquy,
it was on for trial for this colloquy.
Why does that fit with what we said was the policy rationale
behind Wallace W.
where he got everything he was supposed to get?
-: Right, -: The taste.
-: [Attorney Russell] And Wallace W. Himself
also had multiple charges.
-: Sure. -: Very similar.
Actually, the record was very similar
to my clients when he came in
and again, probable cause wasn't enough,
proof beyond a reasonable doubt was required.
And proof beyond a reasonable doubt is supplied
when a CWOF enters after a delinquent plea,
which is what this court said,
and Wallace W. but a CWOF entered
after an admission sufficient facts is different.
It's not.
-: But, why is it different?
That's what I'm getting at.
Because in this case,
if we were to go back,
it's a one witness case,
and I'm not gonna hazard
how long the Commonwealth would've put their case on,
but I imagine the thing would've been 45 minutes.
So if you're telling me that we put one witness on
to testify to X, Y, and Z about the slap,
because the recitation
of the facts was about 30 seconds long.
So, you're saying as a practical matter,
Wallace W. would apply
after a half an hour of a somebody testifying to a slap
and the court finding delinquency
and adjudication on delinquency,
but because it happened before,
when we go through all
of the important constitutional rights he's waiving
and we go through the recitation
of what the Commonwealth would've proved.
We go through all of the immigration consequences,
we go through all of the waiver of motions to suppress,
and after all of that process,
it doesn't count.
Why does that make sense?
-: Because in the case of a trial,
he's had the opportunity to present a defense
and to challenge the evidence
and in the case of a-
Justice Georges: Knowing intelligent waiver
of that right,
-: Yes. -: is not enough?
-: Right, because he can waive the right to that
in order to dispose of the case
without a continuance without a finding.
-: Okay. -: If,
Justice Georges: Go ahead.
-: If we were to accept your position,
I'm having a hard time understanding
why the relief would be, as you suggest,
to vacate the adjudication of delinquency
on the disorderly conduct charge.
Why wouldn't it simply be
to remand for a Wallace W. hearing
with respect to the earlier charge,
the CWOF charge?
-: Well, I think it's, I don't know
that it's mutually exclusive in that, I think,
that the Commonwealth could still proceed
if they elected to retry my client
for the disorderly conduct trial.
-: Not retry.
He's already been tried once.
I'm saying, why wouldn't we just remand
and say, now you have a Wallace W.
inquiry hearing with respect to the earlier CWOF charge,
-: Right. -: the conclusion,
let's say for all the reasons
Justice Georges has pointed out,
judge determines, oh, there, you know,
there was evidence beyond a reasonable doubt that,
that earlier offense had been committed
and the delinquency adjudication
on the disorderly conduct would stand,
I mean, I don't understand
why that wouldn't be the proper relief
even if we were to accept your argument.
-: Well, I agree that there would have to be,
there would be the Wallace hearing
on the continuance without a finding case.
The Commonwealth, I think, could either establish
that there was, that it did follow from a delinquent plea
by listening to the transcript
and proving that there was a stipulation
to guilt beyond a reasonable doubt
in that case is not entitled -: So why isn't
-: for Wallace W. hearing- -: Okay, so,
why isn't all of the procedure
and protections that accompany,
a dismissal accompanied by a CWOF,
accompanied by an admission to sufficient facts,
why isn't that essentially the functional equivalent
of a Wallace W. hearing?
-: Well, I think the,
to establish whether a CWOF flowed
from an admission to sufficient facts
or a delinquent plea
is somewhat functionally equivalent
to a Wallace W. hearing.
I think that the, at Wallace W. hearing,
the Commonwealth could choose
to prove beyond a reasonable doubt
the allegations
or to prove that this particular CWOF
came through circumstances that themselves supplied,
proof beyond reasonable doubt,
which would be after a trial verdict
or after a delinquent plea.
-: Isn't it gonna be the same thing though?
Because we've said in,
was it Nicholas N. that the rules
of evidence don't apply to the strictly to the Wallace W.,
here we have admission to all the sufficient facts.
-: Right. -: So isn't it gonna be
sort of pointless redo
and let me add another layer to it.
After Wallace W., the first offense of a minor misdemeanor
should not be even CWOF'd, right?
It should just be dismissed.
There's no jurisdiction,
so we shouldn't have any of these things going forward.
-: Well, there could still be -: There are, sort of,
historic relics, right?
-: I don't think so,
'cause there could still be CWOF
on major misdemeanors or felonies in a client's past,
which could be the alleged predicate
for a minor misdemeanor.
-: I gotcha. Okay.
So that's how, that it would be CWOF on major misdemeanors
-: Right. -: that this would come by-
-: Going forward, I think that's right
and I think that most CWOFs,
I think, at least in my experience,
many continuances without findings have flowed
from admissions to sufficient facts,
not delinquent plea.
So I don't think that it's gonna be
Justice Kafker: Say that again.
You lost me on that. Go ahead.
-: I said that in my experience,
most CWOFs that are entered,
are entered when there's a plea.
They're entered after an admission to sufficient facts,
not a delinquent plea.
-: Right. -: The question,
is usually framed as an admission to sufficient facts
and the juvenile,
and that's what results in a CWOF.
So I don't think that it's gonna be,
like the majority of cases going this way.
-: Well, knowing again that you didn't say this,
and I have communicated my request to the clerk
because it should have been in the record,
but I did get the hearing
and did listen to the hearing,
but a transcript of the hearing wasn't provided
and neither was the tender of plea,
which it should have been.
So assume for the sake of argument
that we follow what you just said a few minutes ago,
if we were to look at
what would be in front of a juvenile court judge
or whomever would be holding the Wallace W. hearing,
why can't we look at the plea,
listen to it,
look at the tender
and make the determination as to whether or not
it was tantamount to a Wallace W. hearing?
-: I think because I think
that would be sweeping under the rug,
a jurisdictional defect.
I think he had the right to jurisdiction
during the proceedings
and by everyone in the room missing unfortunately
that this included a minor misdemeanor
in this multi-count complaint.
There was not jurisdiction,
the proceedings and the judgment that resulted are void.
So I don't think that can be fixed at this stage,
in the manner that Your Honor suggests.
-: Even with the CARI
and knowing what in order for the CWOF
to have been entered.
Again, I know you say
that the procedural safeguards aren't enough,
but we know that the procedural safeguards are in there,
or at least we can infer that they're there from the CARI
'cause the CWOF entered, that's not enough?
-: No, I think that it would have
to happen in the juvenile court in the first instance.
And I think that if the court found
that he was not entitled to a Wallace hearing,
I don't think that the trial that proceeded is enough.
I think he's entitled to a retrial.
-: Why, why not?
Can you explain that?
Because the jurisdiction of the juvenile court
is over delinquent child.
The Wallace W. hearing is just a way of figuring out
whether or not the child qualifies.
-: Right, and he was not alleged
to be a delinquent child when he went to trial.
-: Whatever the allegations may have been,
isn't it enough to fix it post-talk?
-: No, because I think he had a-
-: To make the determination
as to whether or not there was jurisdiction.
Because if there was jurisdiction,
this was not the first minor misdemeanor,
then the court had jurisdiction the entire trial.
-: Well, but I, -: Regardless of,
whether they did the Wallace W.,
the Wallace W. is just a mechanism
for figuring out whether or not
the juvenile court had jurisdiction.
-: Right, I think that in many instances
it's not going to be perfectly clear
so that the juvenile should have the opportunity
to present evidence on this case.
On the, -: I'm just wondering
about Justice Wolohojian's suggestion
that the remedy here is a remand to determine,
to have the Wallace W. hearing to determine
if that first CWOF was,
could be proved beyond a reasonable doubt.
-: Right, I think it's to dismiss
the disorderly conduct count as it stands now
and allow the Commonwealth to either
conduct a Wallace W. hearing. -: Yeah, so that's my question.
Why would one dismiss the count now?
-: Because the judgment that results from proceedings
conducted without jurisdiction are void.
-: Right, so the question is, was there jurisdiction?
If there was jurisdiction
because one can prove beyond a reasonable doubt
that the first CWOF entered,
then the whole conviction is fine.
-: Right, but I don't think there's,
the answer to whether or not
there is jurisdiction can be answered
without the juvenile having an opportunity
to present evidence to the juvenile court judge.
-: [Justice Wolohojian] That's why you'd have
the Wallace W. hearing
-: Right at the Wallace W. hearing, so.
-: [Justice Wendlandt] But it doesn't have to happen before.
-: No, I think that if the Commonwealth established
and there was no dispute that the adjudication
that the CWOF entered after a trial verdict
or a delinquency plea,
then there would not have to be a Wallace W. hearing.
In any other circumstances
where there's any lack of clarity
about how the CWOF arose,
then there should be a Wallace hearing
and the juvenile should have the opportunity
to present evidence.
And if it's determined
that the Wallace hearing should have
or that there was proof beyond reasonable doubt
for the predicate offense,
I still think that the disorderly conduct charge
should have a retrial,
if the Commonwealth is moving ahead with that.
-: Why? -: Because,
I think that the juries,
the proceedings were,
I think it's sweeping it under the rug otherwise.
-: No, I think with all due respect,
there was either jurisdiction or there wasn't.
The problem you've brought to us,
the way I understand it
is that that inquiry was not made,
but if there was jurisdiction,
then there's no problem
with the delinquency adjudication
on the disorderly conduct charge.
If there wasn't jurisdiction then there was,
but that question needs to be answered somehow.
And it seems to me either we could say,
as a matter of law,
a CWOF prior to an adjudication
of delinquency that never qualifies.
We could say as a matter of law,
an adjudication of delinquency
of a CWOF prior to an adjudication
of delinquency always qualifies.
Or we could say and is let's say the functional equivalent
of a Wallace W. hearing
or we could remand for a Wallace W. hearing.
I think those are the three options,
unless you can think of one other one.
-: No, I think that's right.
-: Counsel, can you give your best answer for why
the legislature would not consider a CWOF
of the type of your clients
to be an prior offense
while at the same time your client could be sentenced
on that offense
and actually be sentenced on that offense
without anything further?
-: Right, I think once the,
if a CWOF upon a violation of probation,
if the CWOF was converted
to a delinquency adjudication,
I think it may be a logical corollary
from the Wallace decision that would count.
I also think there's some tension
because there's no additional proof
beyond a reasonable doubt
to get from the CWOF to the adjudication
as Your Honor has stated.
-: But again, going forward,
you're not gonna have that go,
if it's your first offense
and it's a minor misdemeanor
as opposed to a major misdemeanor, right.
It's gonna be dismissed,
we aren't gonna have CWOF on those, right.
-: Mm-hmm. -: They're supposed to go away.
So we're really only dealing with major misdemeanors, right?
And historic pre Wallace W. type of findings, right?
-: Right, this would be if a major misdemeanor or a felony
were to be continued without a finding.
-: Can I ask a question?
Is an assault and bat, I should know this, I don't.
Is an assault and battery, the CWOF has it,
was that a major or minor misdemeanor?
-: Major Misdemeanor. -: Okay. So that's fine.
Okay, I gotcha. -: Yeah.
-: Okay.
-: Okay, if there are no further questions,
I'd rest in my briefs.
Thank you. -: Thank you.
-: Okay, Attorney Moriarty.
-: Good morning.
Your Honors may please the court,
Eileen Connors Moriarty
for the Commonwealth Assistant District Attorney
from the Cape and Islands District Attorney's office
in charge of the juvenile court
and joined a council table by Elizabeth Sweeney,
Chief of Appeals for the Cape and Islands
District Attorney's office.
In addressing the issues here,
I wanna direct you back to the guiding principle,
the law that governs the juvenile court 119 Section 53
that talks about the care and discipline of children
before the court should approximate
what they would receive from their own parents
as far as practical and not as criminals,
but as children in need of aid,
encouragement and guidance.
The criminal justice reform in 2018 came out
and said that children get a first chance.
The cases that have come
from the court Wallace and Nick N.,
also talk about the importance of the fact
that repeat minor misdemeanor offenses
are intended to be prosecuted
for both the protection of the public
and for rehabilitation of the juvenile.
And also that it's important
that such proceedings occur
in a timely and efficient manner.
The question that comes here today
is whether or not, a CWOF counts.
And I would suggest to you that,
if that the Commonwealth agrees
with the central purpose of that legislation
and court decisions,
that it's to preserve the juvenile's right
to a second chance.
And for those reasons,
suggesting that a CWOF doesn't count,
does in fact, the opposite.
It's important that we have progressive discipline,
in regards to dealing with our children.
Making CWOF not count would go against the spirit of that
and would make them harder to get,
make them more akin to something like,
pretrial probation.
CWOFs are good for kids.
They understand, they understand incentives,
they understand that if you go ahead
and do what was asked of you,
that could be dismissed.
That's the difference for a juvenile between-
-: But at least here,
the issue isn't necessarily whether CWOFs count.
It's when you get the CWOF.
And so the discrete issue here is,
I guess my question listening to your sister's argument is,
is there nothing to be made of all of the rights
that the juvenile waives
during a predispositional CWOF
versus a postdispositional CWOF?
Because your sister seems to suggest that it's of no import,
that he waives his right to counsel about to trial.
He waives his right to present evidence in his own behalf.
The Commonwealth gives a recitation of the facts
they would've proved at trial.
He admits to that.
And this, in this case, I believe the,
the judge asked him specifically,
"Do you agree that that happened?"
And he says, "Yes."
And it seems to me
that if the Wallace W. standard of
beyond a reasonable doubt,
that this is it,
that he's saying, you could find me guilty
beyond a reasonable doubt,
but the court doesn't enter guilty
or a delinquency file,
the adjudication against him.
-: I agree, I would suggest
that it's Mass General Law 278 Section 18 that says the,
that the plea for CWOF
and a delinquency are guilty
is essentially the same.
And that by entering into that plea,
he had the functional equivalent of a Wallace hearing.
And that's what governs,
and that's what's in the best interest of the children
for understanding the process and not retrying
and regoing back through things they've already admitted to.
-: What do we do with all our jurisprudence
that distinguishes these admission to sufficient facts
and says they're not convictions?
Does that matter?
What do we do with all those cases?
-: It matters, but it's different.
The juvenile court is a creature of the legislature
as the juvenile's brief points out.
And it's different.
It's different than everything else.
So it's not that we're saying that doesn't count.
We're saying for these circumstances
in this particular situation,
this is the best way to do it.
-: Only again, only is, it should only apply
to a major misdemeanor.
It shouldn't be a minor misdemeanor,
'cause again, the minor misdemeanor should be
dismissed without a CWOF, right?
-: [Attorney Moriarty] Well, but that's only the first,
-: The first minor misdemeanor should be dismissed
without a CWOF.
We don't want to use this
as a work around the statute, right?
-: Correct. -: Right.
-: I would agree.
It's the first minor misdemeanor is gonna be dismissed
on its own, on its face.
It's going back.
But I do think minor misdemeanors,
CWOF and minor misdemeanors should count
because it's going back to the language in Wallace
and Nick N. that talks about repeat misdemeanor offenses.
This whole, you know, second chance that was created
by the legislature is wonderful,
but what they did was they inserted it
into the middle of the system from the way I see it,
because when the police,
if there's an incident
and the police get involved,
the police can charge or not charge,
they can file a complaint.
The clerk can issue that complaint
or not issue that complaint.
Then the district in some counties,
district attorney's offices have diversion.
We have that on the Cape.
We can go ahead and divert them.
If we choose not to divert them, the judge can,
through the criminal justice reform,
now we have pretrial judicial diversion
that is prior to arraignment.
Then when a case comes forward,
then we can give it pretrial provision.
-: Right, I understand the generalities,
but it's just Justice Wolohojian's question
that sort of intrigues me here though,
which is, okay, so the first,
we all agree the first minor misdemeanor
should be dismissed.
There's no jurisdiction.
Then we've got the second minor misdemeanor.
Do you have to have,
that's there's an admission to sufficient facts
on the second minor misdemeanor, right?
-: Mm-hmm. -: Do we need to have
a Wallace W. hearing on the first one to do that one?
How does that work?
-: [Attorney Moriarty] I would suggest we should not,
that it's a, it's-
-: That's a little inconsistent with what we've said about
we need you to prove something
before you can prosecute
and record a minor misdemeanor.
-: [Attorney Moriarty] Wouldn't that CWOF count?
Wouldn't that be the proof if there was already
-: No, you're, that's the second one.
You see, you're,
I'm trying -: You're going back
to the first one.
-: Given that we keep getting these
and we're gonna get the next one.
I'm trying to anticipate it a little bit here
and make sure I understand what you're arguing.
-: Mm-hmm. -: So, again, the second
he's, this is, let's take a hypothetical,
-: Okay, -: The first time
he does this minor misdemeanor,
everyone agrees it should be dismissed.
-: Yes. -: You now have said
you can have a second minor misdemeanor
and admit to sufficient facts
without having a Wallace W. hearing on the first one.
That's what I thought you just said, or no, maybe not.
-: [Attorney Moriarty] No, but that the CWOF
on that second one would count, going forward.
-: Okay, go ahead. -: That makes sense.
-: I think so perhaps maybe this will help
because I see Justice Kafker's concern
and Justice Wolohojian's.
So let's move this case forward.
The initial CWOF that we're talking about, the A and B.
-: Yes. -: Let's put it
not a historic Wallace W.,
let's put it post Wallace W.,
so when that first A and B came in,
it just got dismissed, okay?
That minor misdemeanor gets dismissed.
Now you've got this two count delinquency complaint
with the minor and the major misdemeanor.
Nothing's been done here.
In our case, it's different.
There's been a CWOF on that,
on this A and B,
assume that this case just got jurisdictionally put out
because Wallace W. says it's his first minor misdemeanor.
So now on this combined complaint
where you've got the minor and the major,
there's never been a prior adjudication.
So can there be an adjudication on that minor misdemeanor
if that A and B hadn't been adjudicated
in the Wallace W. hearing?
Or does the court have to stop and say,
"Before anything happens on this minor misdemeanor,
Commonwealth, you've gotta go back
and have a hearing on
that dismissed out prior minor misdemeanor."
-: But in that situation,
the first assault and battery isn't a minor misdemeanor,
it's a ma- -: Oh, well, just assume that.
-: So if it was a, so it was trespass.
Justice Georges: Oh yeah, yeah,
assume that it was a minor misdemeanor.
-: Okay, so the first one is a minor misdemeanor.
So say it's not assault and battery
and with him, it's trespass.
-: Yeah. -: And then he comes
to Barnstable Court,
it has the assault and battery
and disorderly conduct. -: Yeah.
-: I would still think the CWOF on that.
Justice Georges: It hasn't been CWOF.
-: Oh, it's still open.
No, then he's entitled -: No.
to a Wallace. -: It was dismissed.
The trespass was dismissed.
-: [Attorney Moriarty] Trespass was dismissed.
So then yes, he's entitled to a Wallace hearing
for the disorderly conduct.
-: Okay, so what you're saying is,
just so I'm clear,
if we didn't have a situation where
that first minor misdemeanor was adjudicated in some way
and it was dismissed out under Wallace W.
subsequently, like we have here,
if you've got the minor misdemeanor
and a major that he would be entitled
before that it can be an adjudication
on the minor misdemeanor
that the Commonwealth would have to go back
and prove that other one that's only in Mass courts
that only the Commonwealth knows about
and the clerks knows about
and prove that one
before they can be an adjudication on the subsequent one.
-: I think there's that possibility
or there's a possibility, which I think with the splitting
of the minor and major misdemeanors in Manolo
that it tracks behind.
So that on that day at the arraignment in June,
what we should have done was arraign him
on the disorderly conduct
-: Mm-hmm. -: and then the, excuse me,
arraign him on the assault and battery.
That disorderly conduct should have tracked,
we would've resolved that assault and battery
and then would be left to resolve that disorderly conduct.
That's also the procedure that's at play.
It's not great, but it's a little bit more efficient.
(Justice Georges chuckling)
-: Can I ask you a related question
to Justice Wolohojian, one of the options
that she gave your sister, my view of this,
and perhaps I'm wrong, is that we have the audio
of the proceeding on the A and B CWOF.
You're going to get us a transcript,
you're going to get us the tender of plea.
I would assume in this circumstance
a remand wouldn't be necessary
because we'd have everything
that would be in front of the juvenile court
in terms of whether or not
that prior A and B was proved beyond a reasonable doubt.
-: Correct.
My understanding is we did,
the Commonwealth did seek those things
and that the tender was not available
and we were only given access
to the FTR within the past week.
-: Okay. -: But yes,
that you would have all those things
and be able to look at it.
-: I would think that the tender could be,
I would think that would be available
and that would be nice for the court to have that.
-: [Attorney Moriarty] We will.
-: [Justice Wolohojian] Can you address the sufficiency?
-: The sufficiency? -: Of the evidence.
-: In regards to the original case?
-: The case that's, you know, up here,
the evidence on the disorderly conduct charge?
-: Yes, the evidence in regards to the disorderly conduct,
I think kind of loops back
into whether or not
there was a self-defense instruction.
The judge instructs herself read those things.
I would suggest self-defense fails.
So there, you know, there was no legitimate purpose
for his behavior inside the courthouse.
And it was certainly disorderly, certainly disrupted.
As you see in the video,
which I'm sure you have seen,
you know, that the juvenile comes up the stairs
essentially chasing the adult.
That's disorderly in and of itself
chasing the adult
and then the physical altercation
and then the melee that ensues right in the beginning
that if there's no self-defense,
if that's not a valid claim, then there,
then he is delinquent, disorderly conduct.
-: Does the sufficiency turn on the judge's finding
of the defendant's mindset when he was coming up the stairs,
the judge made a finding that he was essentially coming
to looking for a fight?
-: Yes. -: It does turn on that?
-: [Attorney Moriarty] I think it's, yes,
it turns out at that way and-
-: And what was the evidence to support that finding?
-: When you look at the whole video,
you see first the adult coming up the stairs.
You see him come up the stairs,
you see him look down.
It appears that there's some conversation
and it's two seconds later
that the juvenile comes right up the stairs
and the, you can see in the video,
it's a short set of staircases.
I think it's about eight or 10 steps.
There's one that goes down and then goes down here.
There's a hallway here.
You can see that all in the video.
This was a continuance.
This wasn't the adult laying in weight upstairs,
which when you read the facts
that the juveniles put out suggests
that the adult was laying in weight.
He came up the stairs,
was surprised, and that's what happened.
That's not it at all.
The video when you watch it
shows that he comes up the stairs.
This is a continued progression
from what happened downstairs.
The juveniles running in to an issue
and then claiming self-defense,
when in fact it would perhaps be Mr. Almida who,
excuse me, the adult
who would've had the better claim of self-defense.
-: [Justice Wolohojian] Was there evidence
that there had been an incident downstairs?
-: I believe when- -: This was a continuation?
-: When you see the timing of the video
and the timing of those two individuals coming up,
I would suggest that that's where
that suggestion comes from.
-: I could see that an inference that they were,
he was following him up.
I couldn't really see how the video gave rise
to a reasonable inference of what had happened downstairs.
-: I would suggest it's the him leaning over the stairs,
not just coming up the stairs, minding his business,
but looking behind him, leaning over
and looking down into that below
and that the child comes up just behind him.
I think it's about two seconds.
-: And what do we do with the fact
that the first person up the stairs,
at least on the evidence that we've got,
which is the video through the first punch,
-: It's because he's being pursued by the other child
that he's coming right up behind him.
He's taking the stairs two at a time,
he's running up the stairs.
And that's how that unfolded that he came, right,
he was confronting,
the child was confronting the adult
at the top of the stairs.
-: But the video is very clear that the adult at the top
of the stairs is behind the doorway.
That you can see the juvenile coming up
quickly up the stairs.
The adult is behind the doorway.
He puts up his sleeves like this,
he pulls up his pants
and he put, goes like this.
-: Mm-hmm. -: I mean, I don't,
and then as soon as the juvenile appears,
you see the fist.
I mean, it's not, are you arguing
that the juvenile is the first aggressor in this situation?
-: I would suggest that from the point of view
of where that is, that in fact you,
he can see him when he's coming up the stairs.
He's following, he knows he's right there.
-: I thought your argument was just a,
that he did not retreat where he could have.
-: The child, he did not.
But he also didn't need to run into the situation.
He first following,
there was an issue as they went up the stairs.
So I don't, so it's both, I think.
-: But I understood that was a retreat argument
that he should have not have come up the stairs at all.
Not an argument that he was the first aggressor
in the situation.
-: I think it depends on whether or not,
when you look at the evidence
that the court was presented,
whether you think self-defense was an instruction
that was warranted at that point.
-: Well, do you need him to be the first aggressor,
the defendant, in order to win on self-defense?
-: No. -: Okay.
-: If nothing else, the Commonwealth rest on its brief.
Thank you.