WEBVTT
1
00:00:00.000 --> 00:00:05.000
SJC-13634 in the matter of an impounded case.
2
00:00:21.300 --> 00:00:22.513
Attorney Warren, take your time.
3
00:00:22.513 --> 00:00:24.743
Thank you, thank you, Your Honor.
4
00:00:38.460 --> 00:00:39.330
Good morning, Chief Justice.
5
00:00:39.330 --> 00:00:40.260
And may it please the court,
6
00:00:40.260 --> 00:00:42.990
John Warren, on behalf of the juvenile.
7
00:00:42.990 --> 00:00:45.870
We request reversal in this case.
8
00:00:45.870 --> 00:00:47.670
When this juvenile's mother was concerned
9
00:00:47.670 --> 00:00:50.910
for her 17-year-old son, she did the right thing.
10
00:00:50.910 --> 00:00:53.640
She intervened and she called the police.
11
00:00:53.640 --> 00:00:55.860
In return, she was forced to take the stand.
12
00:00:55.860 --> 00:00:58.260
And when she refused, she was handcuffed
13
00:00:58.260 --> 00:00:59.820
and brought to the bottom of the courthouse
14
00:00:59.820 --> 00:01:01.410
in the holding cell.
15
00:01:01.410 --> 00:01:03.090
That night, while her other children
16
00:01:03.090 --> 00:01:04.980
were in her Lawrence apartment,
17
00:01:04.980 --> 00:01:08.940
she was put on a police van and taken to jail in Boston.
18
00:01:08.940 --> 00:01:11.790
The next morning, she was brought back to the courthouse.
19
00:01:16.320 --> 00:01:19.980
Facing the prospect of continued incarceration,
20
00:01:19.980 --> 00:01:23.370
this mother who had never been to jail, relented,
21
00:01:23.370 --> 00:01:25.590
and sitting in front of her son,
22
00:01:25.590 --> 00:01:29.730
offered material testimony that led to his conviction.
23
00:01:29.730 --> 00:01:32.970
This cannot be what the Legislature intended
24
00:01:32.970 --> 00:01:36.900
when it amended the parent-child disqualification in 2018.
25
00:01:36.900 --> 00:01:38.460
Well, maybe not, not the backstory.
26
00:01:38.460 --> 00:01:40.500
We're talking about the legal issue
27
00:01:40.500 --> 00:01:44.010
of whether or not when it actuates
28
00:01:44.010 --> 00:01:47.730
and whether or not it extends after turning majority.
29
00:01:47.730 --> 00:01:49.500
Now, we've said before,
30
00:01:49.500 --> 00:01:52.140
and if you look back at the case law
31
00:01:52.140 --> 00:01:54.300
from back when the three juveniles
32
00:01:54.300 --> 00:01:56.610
through the impounded case
33
00:01:56.610 --> 00:02:00.270
when Section 20 was first promulgated,
34
00:02:00.270 --> 00:02:04.630
all of those cases deal with teenagers, right?
35
00:02:06.330 --> 00:02:07.500
The three juveniles case,
36
00:02:07.500 --> 00:02:10.050
the case that Justice Ireland talked
37
00:02:10.050 --> 00:02:12.630
about how Section 20 was then enacted
38
00:02:12.630 --> 00:02:14.670
after the three juveniles case,
39
00:02:14.670 --> 00:02:18.180
and the original version of Section 20
40
00:02:18.180 --> 00:02:21.570
talked about unemancipated minors.
41
00:02:21.570 --> 00:02:24.060
So when you look at this rule of disqualification
42
00:02:24.060 --> 00:02:25.830
which we said it was,
43
00:02:25.830 --> 00:02:29.580
the rationale is the preservation
44
00:02:29.580 --> 00:02:31.650
of the parent-child relationship.
45
00:02:31.650 --> 00:02:34.410
And understanding that,
46
00:02:34.410 --> 00:02:36.090
and you certainly cited this in your brief,
47
00:02:36.090 --> 00:02:40.110
that we don't kick our children out after age 18.
48
00:02:40.110 --> 00:02:43.950
There is the rationale for we're only going to protect
49
00:02:43.950 --> 00:02:48.600
that part up to 18 when folks are in the house.
50
00:02:48.600 --> 00:02:51.270
You're not an adult, you're not emancipated.
51
00:02:51.270 --> 00:02:53.550
And so that it would make sense
52
00:02:53.550 --> 00:02:56.220
that this rule of disqualification
53
00:02:56.220 --> 00:03:01.220
would only actuate when the child was under 18 and a minor,
54
00:03:01.860 --> 00:03:04.260
which is what the statute says, minor.
55
00:03:04.260 --> 00:03:05.810
So I think Your Honor's right
56
00:03:06.773 --> 00:03:09.480
to bring up that the core intent of the statute
57
00:03:09.480 --> 00:03:11.370
is safeguarding the relationship
58
00:03:11.370 --> 00:03:13.950
between a parent and the minor child.
59
00:03:13.950 --> 00:03:16.230
And our reading of the statute does that
60
00:03:16.230 --> 00:03:19.920
because it affects how a parent relates to the minor child
61
00:03:19.920 --> 00:03:22.290
and interacts and communicates-
62
00:03:22.290 --> 00:03:25.860
Your interpretation eliminates the word minor.
63
00:03:25.860 --> 00:03:26.910
I disagree, Your Honor.
64
00:03:26.910 --> 00:03:29.730
I would suggest at the time,
65
00:03:29.730 --> 00:03:34.173
a 16-year-old or 17-year-old is encountering problems,
66
00:03:35.130 --> 00:03:38.640
our reading affects how a parent can communicate
67
00:03:38.640 --> 00:03:41.130
with that child and intervene.
68
00:03:41.130 --> 00:03:45.570
It affects how they can listen to their child.
69
00:03:45.570 --> 00:03:49.170
And if they need to call the school, call a counselor,
70
00:03:49.170 --> 00:03:51.217
call the police without fear that,
71
00:03:51.217 --> 00:03:55.620
"Hey, I can't learn too much because for all I know,
72
00:03:55.620 --> 00:03:57.720
a trial's gonna happen when the kid's 18,
73
00:03:57.720 --> 00:03:59.700
and then I'm gonna be a witness in the case."
74
00:03:59.700 --> 00:04:02.880
So what it does is it protects that relationship
75
00:04:02.880 --> 00:04:06.210
between the parent and the minor child
76
00:04:06.210 --> 00:04:09.540
at the time that this stuff is going on.
77
00:04:09.540 --> 00:04:12.120
That's not consistent with the text of the statute, right,
78
00:04:12.120 --> 00:04:17.100
because the statute talks about testifying, right?
79
00:04:17.100 --> 00:04:19.950
It doesn't talk about when the case starts.
80
00:04:19.950 --> 00:04:21.960
It doesn't talk about that progression.
81
00:04:21.960 --> 00:04:24.660
It talks about the act of testifying.
82
00:04:24.660 --> 00:04:26.820
I would suggest first, Your Honor,
83
00:04:26.820 --> 00:04:28.740
that the statute is ambiguous
84
00:04:28.740 --> 00:04:31.230
because although it does talk about testifying,
85
00:04:31.230 --> 00:04:34.380
it doesn't say when to assess minor child status,
86
00:04:34.380 --> 00:04:36.360
and it doesn't define minor child.
87
00:04:36.360 --> 00:04:39.210
And I'll give the court two examples.
88
00:04:39.210 --> 00:04:42.420
One of which is the spousal disqualification,
89
00:04:42.420 --> 00:04:46.260
which also like the statute, bars testimony,
90
00:04:46.260 --> 00:04:48.840
but it doesn't depend on the marital status
91
00:04:48.840 --> 00:04:50.490
at the time of the testimony.
92
00:04:50.490 --> 00:04:53.910
It depends on the status at the time of the communication.
93
00:04:53.910 --> 00:04:56.610
And I think this court can see the Legislature
94
00:04:56.610 --> 00:04:59.010
was concerned about communications
95
00:04:59.010 --> 00:05:00.750
between children and their parents
96
00:05:00.750 --> 00:05:02.760
because it's right there in the text of the statute.
97
00:05:02.760 --> 00:05:05.800
It's an exception to an exception in the rule
98
00:05:07.267 --> 00:05:09.930
that certain communications are to be protected.
99
00:05:09.930 --> 00:05:13.170
So we know that the Legislature was looking back.
100
00:05:13.170 --> 00:05:14.310
The statute doesn't talk
101
00:05:14.310 --> 00:05:16.560
about confidential communications.
102
00:05:16.560 --> 00:05:18.633
It talks about the act of testifying.
103
00:05:19.530 --> 00:05:20.880
I would point Your Honor,
104
00:05:22.740 --> 00:05:26.403
to the last section in Paragraph 4.
105
00:05:27.240 --> 00:05:30.480
There's an exception to an exception
106
00:05:30.480 --> 00:05:32.550
that talks specifically about communications.
107
00:05:32.550 --> 00:05:34.316
I would suggest that evidences
108
00:05:34.316 --> 00:05:37.053
of the Legislature's intent to-
109
00:05:38.096 --> 00:05:39.874
[Justice Wendlandt] Isn't it, though-
110
00:05:39.874 --> 00:05:40.770
concerned about communications.
111
00:05:40.770 --> 00:05:43.410
I do wonder if that exception to the exception,
112
00:05:43.410 --> 00:05:44.403
as you call it,
113
00:05:45.270 --> 00:05:48.750
shows that when the Legislature chose to protect
114
00:05:48.750 --> 00:05:52.470
the communication between a parent and a child
115
00:05:52.470 --> 00:05:56.280
when the child is a minor, they knew how to do it.
116
00:05:56.280 --> 00:06:00.090
Whereas, that first sentence that you're relying on
117
00:06:00.090 --> 00:06:04.263
is about the moment of testifying.
118
00:06:05.220 --> 00:06:08.820
It doesn't say the parent shall not testify
119
00:06:08.820 --> 00:06:11.910
as to communications between the parent and the minor child.
120
00:06:11.910 --> 00:06:14.352
That would be a stronger case for you.
121
00:06:14.352 --> 00:06:16.740
I think the Legislature could have been more clear
122
00:06:16.740 --> 00:06:17.850
in either direction.
123
00:06:17.850 --> 00:06:21.600
And I suggest it's ambiguous, and I suggest like this-
124
00:06:21.600 --> 00:06:24.603
Yeah, but one of the tools we use to resolve,
125
00:06:25.440 --> 00:06:27.720
actually before we say something is ambiguous,
126
00:06:27.720 --> 00:06:30.330
is to look at the statute as a whole.
127
00:06:30.330 --> 00:06:34.080
And here, as I was saying, it looks like the statute knew
128
00:06:34.080 --> 00:06:37.800
how to protect communications between a parent and a child.
129
00:06:37.800 --> 00:06:40.590
And it didn't use that same language
130
00:06:40.590 --> 00:06:43.020
in the first part that you're relying on.
131
00:06:43.020 --> 00:06:44.760
So I think because it's assumed
132
00:06:44.760 --> 00:06:48.273
that it was going to protect communications.
133
00:06:52.750 --> 00:06:56.580
And so like the spousal disqualification,
134
00:06:56.580 --> 00:06:59.730
that also bars testimony,
135
00:06:59.730 --> 00:07:01.680
but it doesn't relate to the relationship
136
00:07:01.680 --> 00:07:02.902
at the time of testimony.
137
00:07:02.902 --> 00:07:04.050
[Justice Wolohojian] May I ask you a,
138
00:07:04.050 --> 00:07:06.450
I'm sorry, may I ask you a question?
139
00:07:06.450 --> 00:07:10.710
Do you have the statutory language right in front of you?
140
00:07:10.710 --> 00:07:11.580
Yes.
141
00:07:11.580 --> 00:07:12.413
Okay.
142
00:07:12.413 --> 00:07:15.900
So what I'm puzzled about
143
00:07:15.900 --> 00:07:20.900
is the end of the clause that you're relying on.
144
00:07:21.270 --> 00:07:25.560
So we're talking here about a youthful offender charge,
145
00:07:25.560 --> 00:07:27.390
correct?
Correct.
146
00:07:27.390 --> 00:07:29.227
Do you see the language that says
147
00:07:29.227 --> 00:07:32.310
"youthful offender proceeding in which the victim
148
00:07:32.310 --> 00:07:34.380
in the proceeding is not a family member
149
00:07:34.380 --> 00:07:37.560
and does not reside in the family household"?
150
00:07:37.560 --> 00:07:40.440
I have two questions for you about that language.
151
00:07:40.440 --> 00:07:43.950
The first is, does it attach solely
152
00:07:43.950 --> 00:07:47.673
to youthful offender proceedings?
153
00:07:48.720 --> 00:07:49.920
That's not how I read it.
154
00:07:49.920 --> 00:07:52.290
You think that that clause attaches
155
00:07:52.290 --> 00:07:54.780
to everything that precedes it
156
00:07:54.780 --> 00:07:57.693
despite the fact that there are commas separating it?
157
00:07:59.610 --> 00:08:02.340
Reading it now, thinking about it now, I would say yes.
158
00:08:02.340 --> 00:08:03.210
Okay.
159
00:08:03.210 --> 00:08:05.340
And then here, though,
160
00:08:05.340 --> 00:08:08.850
if that's the case here, though,
161
00:08:08.850 --> 00:08:11.760
this case doesn't fall into that category
162
00:08:11.760 --> 00:08:16.760
because it's not a case about a situation
163
00:08:16.890 --> 00:08:20.070
where the victim in the proceeding is not a family member
164
00:08:20.070 --> 00:08:22.500
and does not reside in the household.
165
00:08:22.500 --> 00:08:23.550
So-
Correct.
166
00:08:23.550 --> 00:08:25.053
How does that help you?
167
00:08:26.250 --> 00:08:29.310
It helps because it shows the broad intent
168
00:08:29.310 --> 00:08:31.170
of the Legislature to be concerned,
169
00:08:31.170 --> 00:08:33.480
not just about the time of the testimony,
170
00:08:33.480 --> 00:08:34.680
but about communications.
171
00:08:34.680 --> 00:08:36.600
But no, because what you just did
172
00:08:36.600 --> 00:08:38.640
was narrow the scope of the protection
173
00:08:38.640 --> 00:08:41.013
if I understood your answer correctly.
174
00:08:42.180 --> 00:08:46.670
You just narrowed the scope of this testimonial restriction
175
00:08:48.930 --> 00:08:51.990
to proceedings in which the victim in the proceeding
176
00:08:51.990 --> 00:08:54.180
is not a family member and does not reside
177
00:08:54.180 --> 00:08:55.470
in the family household.
178
00:08:55.470 --> 00:08:57.440
That's not what I'm intending to do, Your Honor.
179
00:08:57.440 --> 00:08:58.273
Okay.
180
00:08:58.273 --> 00:09:00.180
So does that language only attach
181
00:09:00.180 --> 00:09:02.430
to youthful offender proceedings?
182
00:09:02.430 --> 00:09:05.670
No, Your Honor. But what I'm saying is-
183
00:09:05.670 --> 00:09:07.020
All right, can we at least agree
184
00:09:07.020 --> 00:09:10.080
that this is not a case where the,
185
00:09:10.080 --> 00:09:12.330
I don't even know if there is a victim.
186
00:09:12.330 --> 00:09:14.157
But can we at least agree one-
187
00:09:14.157 --> 00:09:14.990
Not one of those cases, Your Honor.
188
00:09:14.990 --> 00:09:16.290
It's not one of those cases.
189
00:09:16.290 --> 00:09:18.810
So how do you even fall within the statute?
190
00:09:18.810 --> 00:09:20.340
I'm not saying that we fall within it.
191
00:09:20.340 --> 00:09:22.860
What I'm saying is the fact that the Legislature
192
00:09:22.860 --> 00:09:26.280
is focused on communications gives insight to the fact
193
00:09:26.280 --> 00:09:27.720
they're not just thinking about this
194
00:09:27.720 --> 00:09:29.460
at the time of the testimony.
195
00:09:29.460 --> 00:09:31.143
And so-
196
00:09:32.880 --> 00:09:34.833
I tend to find your,
197
00:09:36.000 --> 00:09:38.730
if we adopt the other side's interpretation,
198
00:09:38.730 --> 00:09:41.730
aren't we just gutting this privilege, I mean,
199
00:09:41.730 --> 00:09:44.460
and allowing the Commonwealth to, you know,
200
00:09:44.460 --> 00:09:46.860
you've got a 17-year-old, wait a little while.
201
00:09:46.860 --> 00:09:50.460
Something that can happen when the person's 17
202
00:09:50.460 --> 00:09:54.150
if we wait two days later to try the case.
203
00:09:54.150 --> 00:09:55.353
Now, all of this is,
204
00:09:56.370 --> 00:09:59.370
it just seems like it's gonna defeat the entire purpose.
205
00:09:59.370 --> 00:10:00.450
Exactly, Your Honor.
206
00:10:00.450 --> 00:10:02.307
Because parents aren't gonna relate to their-
207
00:10:02.307 --> 00:10:04.440
Can I weigh on one more for you just so you can-
208
00:10:04.440 --> 00:10:05.273
Yes, Your Honor.
209
00:10:05.273 --> 00:10:07.833
I also don't understand how we're gonna,
210
00:10:08.700 --> 00:10:11.160
if the mother can't help the child
211
00:10:11.160 --> 00:10:12.813
when the child's in trouble,
212
00:10:14.760 --> 00:10:15.723
I just don't,
213
00:10:16.980 --> 00:10:19.410
then the parent-child relationship
214
00:10:19.410 --> 00:10:21.603
is gonna be severely damaged.
215
00:10:22.641 --> 00:10:25.320
I don't understand how this is gonna work
216
00:10:25.320 --> 00:10:26.600
for the Legislature to limit it
217
00:10:26.600 --> 00:10:29.300
in the narrow way of testifying.
218
00:10:29.300 --> 00:10:30.600
So I know that's your argument.
219
00:10:30.600 --> 00:10:31.590
That's, exactly right, Your Honor.
220
00:10:31.590 --> 00:10:33.720
It's gonna affect how parents are gonna communicate
221
00:10:33.720 --> 00:10:34.553
with their children.
222
00:10:34.553 --> 00:10:37.200
It's gonna affect how parents are gonna walk their child
223
00:10:37.200 --> 00:10:38.820
through the criminal justice system-
224
00:10:38.820 --> 00:10:39.653
Well, counsel-
225
00:10:39.653 --> 00:10:40.486
which we know that they're required to do.
226
00:10:40.486 --> 00:10:43.140
I have to stop you there because you keep making this
227
00:10:43.140 --> 00:10:46.500
a confidential communication case, and it's not.
228
00:10:46.500 --> 00:10:47.730
It's just not.
229
00:10:47.730 --> 00:10:50.430
The mother calls the police because she sees a gun.
230
00:10:50.430 --> 00:10:53.130
This is not the question of what she said
231
00:10:53.130 --> 00:10:54.750
to her minor child.
232
00:10:54.750 --> 00:10:56.460
She saw a gun in the household
233
00:10:56.460 --> 00:10:58.950
and she let a local detective know
234
00:10:58.950 --> 00:11:01.080
that "I've seen this gun in the house."
235
00:11:01.080 --> 00:11:02.430
So this isn't a question
236
00:11:02.430 --> 00:11:05.640
of protecting confidential communications.
237
00:11:05.640 --> 00:11:07.335
And parents aren't gonna do that, Your Honor,
238
00:11:07.335 --> 00:11:09.930
if it's read the Commonwealth's way.
239
00:11:09.930 --> 00:11:12.930
And this mother likely wouldn't do it again, right,
240
00:11:12.930 --> 00:11:17.610
because under the Commonwealth's reading,
241
00:11:17.610 --> 00:11:18.810
they might be a witness-
242
00:11:18.810 --> 00:11:19.650
Okay.
in a trial.
243
00:11:19.650 --> 00:11:22.050
And so it protects the bond at the time
244
00:11:22.050 --> 00:11:23.550
that that bond is needed.
245
00:11:23.550 --> 00:11:24.990
Could I just pivot you to one thing
246
00:11:24.990 --> 00:11:27.000
because I don't want to necessarily miss this
247
00:11:27.000 --> 00:11:30.480
because I'm really interested in the issue of prejudice.
248
00:11:30.480 --> 00:11:32.100
Because let's just say that we agree
249
00:11:32.100 --> 00:11:33.750
with your interpretation of it.
250
00:11:33.750 --> 00:11:36.300
And I know you characterize this in your brief
251
00:11:36.300 --> 00:11:40.350
that her testimony was critical to the Commonwealth's case.
252
00:11:40.350 --> 00:11:44.340
I just would like to push back on that a little bit
253
00:11:44.340 --> 00:11:49.340
because the government is gonna stand up here and say,
254
00:11:49.470 --> 00:11:51.300
they went and got a warrant.
255
00:11:51.300 --> 00:11:53.520
The trial judge said you can testify
256
00:11:53.520 --> 00:11:55.920
as to why it is you were there.
257
00:11:55.920 --> 00:11:57.630
And Detective Vovalis, I believe,
258
00:11:57.630 --> 00:12:00.450
testified that he was the target.
259
00:12:00.450 --> 00:12:02.850
He testifies to going into the bedroom,
260
00:12:02.850 --> 00:12:05.880
seeing him laying on a bed with his head on a pillow,
261
00:12:05.880 --> 00:12:08.010
which is exactly where they found.
262
00:12:08.010 --> 00:12:09.750
And understanding that the defense
263
00:12:09.750 --> 00:12:10.917
said other people were there
264
00:12:10.917 --> 00:12:13.170
and there were all these other reasons why
265
00:12:13.170 --> 00:12:16.710
you couldn't really say he was the possessor of it.
266
00:12:16.710 --> 00:12:18.810
That was the testimony.
267
00:12:18.810 --> 00:12:21.510
So even with mom's testimony,
268
00:12:21.510 --> 00:12:25.710
even if we say mom shouldn't have been forced to testify,
269
00:12:25.710 --> 00:12:28.800
you still had Detective Vovalis' testimony
270
00:12:28.800 --> 00:12:32.430
where the jury could have come back with the guilty.
271
00:12:32.430 --> 00:12:34.680
So where's the prejudice?
272
00:12:34.680 --> 00:12:36.120
Your Honor, first of all, what I would say
273
00:12:36.120 --> 00:12:37.710
is the Commonwealth doesn't argue
274
00:12:37.710 --> 00:12:39.330
that there wasn't prejudice in that case.
275
00:12:39.330 --> 00:12:40.230
Whether they argue or not
276
00:12:40.230 --> 00:12:42.990
is beside the point.
277
00:12:42.990 --> 00:12:44.580
And I would suggest there's good reason
278
00:12:44.580 --> 00:12:46.650
they don't argue it when you look to,
279
00:12:46.650 --> 00:12:49.680
as Your Honor mentioned in an argument last month,
280
00:12:49.680 --> 00:12:51.300
look at how the case was tried,
281
00:12:51.300 --> 00:12:53.910
and you turn to the Commonwealth's closing argument
282
00:12:53.910 --> 00:12:56.820
and you see that they're harping on the mother's testimony.
283
00:12:56.820 --> 00:12:58.320
In fact, they go so far as to say
284
00:12:58.320 --> 00:13:01.027
that the defense arguments
285
00:13:01.027 --> 00:13:03.000
"may have made sense to the jury
286
00:13:03.000 --> 00:13:05.370
without the mother's testimony."
287
00:13:05.370 --> 00:13:08.640
The mother gives the Commonwealth four things in this case.
288
00:13:08.640 --> 00:13:13.440
The mother identifies her son from the photograph.
289
00:13:13.440 --> 00:13:16.170
She says that she called the police about this juvenile
290
00:13:16.170 --> 00:13:17.553
and it involved a gun.
291
00:13:19.587 --> 00:13:21.390
She testified that she told the detective
292
00:13:21.390 --> 00:13:23.520
where he could find the gun in the home.
293
00:13:23.520 --> 00:13:26.790
And she testified that when asked
294
00:13:26.790 --> 00:13:29.040
if she'd ever seen the juvenile with the gun,
295
00:13:29.040 --> 00:13:31.110
she said it was always in the room.
296
00:13:31.110 --> 00:13:33.270
And you'll see in the Commonwealth's closing argument,
297
00:13:33.270 --> 00:13:35.860
they harp on all these points continuously
298
00:13:36.750 --> 00:13:38.010
and very strong.
But those are all things
299
00:13:38.010 --> 00:13:40.350
that Detective Vovalis testified to.
300
00:13:40.350 --> 00:13:43.290
Detective Vovalis did not specifically
301
00:13:43.290 --> 00:13:46.860
identify this juvenile from the photograph.
302
00:13:46.860 --> 00:13:47.693
No, no.
303
00:13:47.693 --> 00:13:51.330
But he identified that juvenile as being the person
304
00:13:51.330 --> 00:13:52.620
on the bed-
Right.
305
00:13:52.620 --> 00:13:54.240
when they served the warrant
306
00:13:54.240 --> 00:13:57.450
with his head on the pillow under which they found this gun.
307
00:13:57.450 --> 00:13:58.590
That's all true, Your Honor.
308
00:13:58.590 --> 00:14:00.510
And this is a case,
309
00:14:00.510 --> 00:14:03.630
certainly he was very close to that gun in close proximity.
310
00:14:03.630 --> 00:14:04.860
But that's not enough, Your Honor.
311
00:14:04.860 --> 00:14:07.470
And there was no DNA or fingerprint evidence,
312
00:14:07.470 --> 00:14:08.303
as Your Honor mentioned.
313
00:14:08.303 --> 00:14:09.930
There were six people living in the house.
314
00:14:09.930 --> 00:14:11.550
One of them was the juvenile's brother
315
00:14:11.550 --> 00:14:14.580
who was in that very room on another bed.
316
00:14:14.580 --> 00:14:17.550
They searched the entire-
How old is the other child?
317
00:14:17.550 --> 00:14:19.770
I don't believe that's in the record, Your Honor.
318
00:14:19.770 --> 00:14:20.790
They searched the house,
319
00:14:20.790 --> 00:14:23.910
and there was nothing belonging to the juvenile
320
00:14:23.910 --> 00:14:25.560
in this particular room.
321
00:14:25.560 --> 00:14:27.210
And there are no incriminating statements
322
00:14:27.210 --> 00:14:29.040
made by the juvenile.
323
00:14:29.040 --> 00:14:31.530
So, Your Honor, I believe there is clear prejudice,
324
00:14:31.530 --> 00:14:34.180
particularly when you look at how the case was tried.
325
00:14:35.340 --> 00:14:38.880
And if I may, turning back,
326
00:14:38.880 --> 00:14:43.560
I did just wanna highlight two other places
327
00:14:43.560 --> 00:14:46.210
you can turn to in the plain terms of the statute
328
00:14:47.970 --> 00:14:49.770
because I talked about that communications.
329
00:14:49.770 --> 00:14:53.700
A second one would be that this is not just a trial right.
330
00:14:53.700 --> 00:14:55.650
It concerns any proceeding.
331
00:14:55.650 --> 00:14:57.307
And I think you can look at that and say,
332
00:14:57.307 --> 00:14:59.580
"All right, the Legislature's thinking about this
333
00:14:59.580 --> 00:15:02.217
as applying throughout the pendency of the case."
334
00:15:03.990 --> 00:15:06.630
Another plain term you can look at is
335
00:15:06.630 --> 00:15:10.320
although this isn't a juvenile specific statute,
336
00:15:10.320 --> 00:15:12.960
the statute references specifically delinquency
337
00:15:12.960 --> 00:15:14.970
and youthful offender proceedings.
338
00:15:14.970 --> 00:15:17.520
And presumptively, this is gonna be a statute
339
00:15:17.520 --> 00:15:19.530
that arises in the juvenile court.
340
00:15:19.530 --> 00:15:22.230
And because they're talking about juvenile court,
341
00:15:22.230 --> 00:15:23.940
what I would suggest is it should align
342
00:15:23.940 --> 00:15:28.470
with how juvenile court proceeds,
343
00:15:28.470 --> 00:15:32.220
which is that there's continuing jurisdiction
344
00:15:32.220 --> 00:15:36.240
over pending cases even though the child has turned 18.
345
00:15:36.240 --> 00:15:38.490
And this should align with the juvenile court.
346
00:15:38.490 --> 00:15:40.920
That's the only way that this statute makes sense.
347
00:15:40.920 --> 00:15:42.620
And frankly, it doesn't make sense
348
00:15:44.490 --> 00:15:47.400
to be determined on an arbitrary date,
349
00:15:47.400 --> 00:15:49.080
which is the date of the trial.
350
00:15:49.080 --> 00:15:51.960
That doesn't give certainty to inform
351
00:15:51.960 --> 00:15:55.470
how parents are to relate to their minor children
352
00:15:55.470 --> 00:15:58.170
and to help them through the court system.
353
00:15:58.170 --> 00:15:59.523
And finally, Your Honors,
354
00:16:01.200 --> 00:16:03.663
I would ask you to consider the rule of lenity,
355
00:16:04.620 --> 00:16:06.330
and especially for juveniles,
356
00:16:06.330 --> 00:16:09.360
and point the court to the Hanson H. case,
357
00:16:09.360 --> 00:16:10.950
which is a case where this court
358
00:16:10.950 --> 00:16:13.620
took a non-juvenile statute
359
00:16:13.620 --> 00:16:17.640
but still considered Section 53
360
00:16:17.640 --> 00:16:19.350
and interpreting the statute in the light
361
00:16:19.350 --> 00:16:21.453
most favorable to the juvenile.
362
00:16:22.767 --> 00:16:23.760
If there are no other questions,
363
00:16:23.760 --> 00:16:26.370
I rest on my brief for this and the other errors,
364
00:16:26.370 --> 00:16:28.843
all of which I would suggest were prejudicial in this case.
365
00:16:28.843 --> 00:16:30.887
Thank you.
Thank you, Your Honors.
366
00:16:34.860 --> 00:16:36.063
Okay, Attorney Cohen.
367
00:16:48.480 --> 00:16:49.350
May it please the court,
368
00:16:49.350 --> 00:16:51.150
Jennifer Cohen for the Commonwealth.
369
00:16:52.080 --> 00:16:55.140
As to the parent-child disqualification,
370
00:16:55.140 --> 00:16:56.640
the Commonwealth's argument is purely
371
00:16:56.640 --> 00:16:58.830
one of statutory interpretation.
372
00:16:58.830 --> 00:17:00.270
The Commonwealth acknowledges
373
00:17:00.270 --> 00:17:02.580
that this would've been a very difficult situation
374
00:17:02.580 --> 00:17:03.413
for the mother.
375
00:17:03.413 --> 00:17:06.270
And those words are perhaps inadequate
376
00:17:06.270 --> 00:17:08.737
to describe the situation in which she was put.
377
00:17:09.737 --> 00:17:11.430
And the Commonwealth also-
She ends up jailed, right?
378
00:17:11.430 --> 00:17:12.500
I mean-
Correct, Your Honor.
379
00:17:12.500 --> 00:17:14.060
Is this really
380
00:17:14.060 --> 00:17:14.970
what the Legislature intended?
381
00:17:14.970 --> 00:17:17.760
I mean, I understand they used the word testifying.
382
00:17:17.760 --> 00:17:18.593
Yes.
383
00:17:18.593 --> 00:17:21.090
That seems to, but,
384
00:17:21.090 --> 00:17:24.000
so the child, two days.
385
00:17:24.000 --> 00:17:25.680
You wait a week.
386
00:17:25.680 --> 00:17:29.853
Suddenly, the mother has to testify.
387
00:17:30.960 --> 00:17:35.960
But if the child's 17 years and 354 days old,
388
00:17:36.930 --> 00:17:38.613
the mother can't testify.
389
00:17:40.020 --> 00:17:42.420
We see just how damaging this is
390
00:17:42.420 --> 00:17:44.700
to the parent-child relationship here.
391
00:17:44.700 --> 00:17:48.180
You can't imagine the mother's put in a worse situation.
392
00:17:48.180 --> 00:17:53.167
The child's mother is the primary testimony against him.
393
00:17:54.270 --> 00:17:56.790
And the mother's done the right thing
394
00:17:56.790 --> 00:17:57.690
right from the beginning.
395
00:17:57.690 --> 00:17:59.430
She wants this gun off the street.
396
00:17:59.430 --> 00:18:00.843
She wants her child.
397
00:18:01.890 --> 00:18:05.520
But then she becomes the, you know,
398
00:18:05.520 --> 00:18:09.210
the sword that, you know, is used against him.
399
00:18:09.210 --> 00:18:11.370
Is this really what the Legislature wanted here?
400
00:18:11.370 --> 00:18:13.380
I just, I have trouble with that.
401
00:18:13.380 --> 00:18:17.940
Well, Your Honor, I would say that in Vigiani,
402
00:18:17.940 --> 00:18:22.650
there's a footnote that points to concerns
403
00:18:22.650 --> 00:18:25.620
about pitting family members against each other.
404
00:18:25.620 --> 00:18:29.340
And I think that regardless of,
405
00:18:29.340 --> 00:18:33.390
I guess, disregarding this situation-
406
00:18:33.390 --> 00:18:38.070
But we can't 'cause this, this is exactly the situation.
407
00:18:38.070 --> 00:18:42.360
So I would say that the parent-child relationship
408
00:18:42.360 --> 00:18:46.740
is affected regardless of whether the court
409
00:18:46.740 --> 00:18:49.590
takes my interpretation or my brother's interpretation
410
00:18:49.590 --> 00:18:53.190
because the Legislature chose to include the word minor.
411
00:18:53.190 --> 00:18:56.220
As my brother and the Amicus briefs have raised,
412
00:18:56.220 --> 00:18:59.040
the parent-child relationship is different
413
00:18:59.040 --> 00:19:00.530
from the marriage relationship
414
00:19:00.530 --> 00:19:03.870
in that it's continuing throughout your life.
415
00:19:03.870 --> 00:19:06.150
Regardless, it starts when it starts.
416
00:19:06.150 --> 00:19:07.810
Hopefully, the marriage relationship
417
00:19:07.810 --> 00:19:09.210
is continuing.
Hopefully.
418
00:19:10.260 --> 00:19:13.570
But that relationship can be affected
419
00:19:14.970 --> 00:19:17.673
by a lack of disqualification,
420
00:19:19.860 --> 00:19:23.400
regardless of whether this is in the juvenile court or not
421
00:19:23.400 --> 00:19:25.920
because that word minor is there.
422
00:19:25.920 --> 00:19:26.753
I think-
423
00:19:26.753 --> 00:19:28.980
I get it when we're dealing with children
424
00:19:28.980 --> 00:19:33.210
who are in their 20s or 19, whatever.
425
00:19:33.210 --> 00:19:37.860
But when this happens, this child is a minor.
426
00:19:37.860 --> 00:19:40.530
Isn't their interpretation more logical
427
00:19:40.530 --> 00:19:43.590
that we look at the transaction itself?
428
00:19:43.590 --> 00:19:46.950
Did this happen when this child was a minor?
429
00:19:46.950 --> 00:19:50.790
And is the mother going to be testifying against this child
430
00:19:50.790 --> 00:19:53.310
about what occurred when the child
431
00:19:53.310 --> 00:19:56.370
was under her direct supervision?
432
00:19:56.370 --> 00:19:58.350
It just seems sensible.
433
00:19:58.350 --> 00:20:01.470
There are no doubt good policy reasons
434
00:20:01.470 --> 00:20:05.280
for a statute on the disqualification to be worded,
435
00:20:05.280 --> 00:20:06.300
as my brother suggests-
436
00:20:06.300 --> 00:20:07.860
But when we interpret language,
437
00:20:07.860 --> 00:20:09.697
that classic line that we always quote.
438
00:20:09.697 --> 00:20:12.600
"We look at the text and then we look at the mischief
439
00:20:12.600 --> 00:20:15.120
for whatever it is that the Legislature
440
00:20:15.120 --> 00:20:17.400
is designed to address."
441
00:20:17.400 --> 00:20:22.290
And here that is protecting the parent-child relationship
442
00:20:22.290 --> 00:20:27.290
in the context of the prosecution of the child.
443
00:20:27.390 --> 00:20:32.190
We don't want to make the mother the,
444
00:20:32.190 --> 00:20:34.560
again, I don't know how to describe it,
445
00:20:34.560 --> 00:20:39.540
basically the primary and determinative witness
446
00:20:39.540 --> 00:20:41.640
in the case against her own child.
447
00:20:41.640 --> 00:20:44.700
So I do understand the court's point, but again,
448
00:20:44.700 --> 00:20:47.370
I think that the operative word here is minor,
449
00:20:47.370 --> 00:20:50.490
and that the court could have protected
450
00:20:50.490 --> 00:20:53.520
this relationship in perpetuity, but it didn't.
451
00:20:53.520 --> 00:20:55.320
It chose to include the word minor
452
00:20:55.320 --> 00:20:58.620
because it drew a line at a specific date.
453
00:20:58.620 --> 00:21:03.570
And I would say that this paragraph must be interpreted
454
00:21:03.570 --> 00:21:05.430
in line with the other paragraphs in the statute.
455
00:21:05.430 --> 00:21:08.250
How does the mother do her job as a mother
456
00:21:08.250 --> 00:21:10.740
when the child is a child
457
00:21:10.740 --> 00:21:15.273
if she is then gonna testify about what she did,
458
00:21:16.809 --> 00:21:19.410
you know, the moment the child turns 18.
459
00:21:19.410 --> 00:21:23.190
I understand that policy-wise, this is difficult.
460
00:21:23.190 --> 00:21:25.830
And I don't think that I have a very good answer
461
00:21:25.830 --> 00:21:26.790
for Your Honor.
462
00:21:26.790 --> 00:21:29.850
Well, aren't all of these disqualifications and privileges
463
00:21:29.850 --> 00:21:33.270
things that we look to the Legislature to balance
464
00:21:33.270 --> 00:21:36.660
between the preservation of the spousal relationship,
465
00:21:36.660 --> 00:21:38.520
the parent-child relationship,
466
00:21:38.520 --> 00:21:41.520
and the public's right to truth telling.
467
00:21:41.520 --> 00:21:44.550
And, so each one of these involves a balance.
468
00:21:44.550 --> 00:21:49.350
And so, I guess, I wonder if the Commonwealth's position
469
00:21:49.350 --> 00:21:53.310
is not sort of strict construction on the word minor,
470
00:21:53.310 --> 00:21:58.200
but really that the use of both testified and minor child
471
00:21:58.200 --> 00:22:02.400
indicates the Legislature's line drawing in that way.
472
00:22:02.400 --> 00:22:03.570
I would agree with Your Honor.
473
00:22:03.570 --> 00:22:06.990
And I think that testifying, time of testimony,
474
00:22:06.990 --> 00:22:08.730
is the operative moment here,
475
00:22:08.730 --> 00:22:12.930
just as it is with the spousal privilege.
476
00:22:12.930 --> 00:22:15.663
I think, as Your Honor pointed out earlier,
477
00:22:17.220 --> 00:22:20.103
the Legislature chose the words that it did,
478
00:22:21.090 --> 00:22:24.360
and I think the court must interpret those words
479
00:22:24.360 --> 00:22:26.280
in line with its interpretation
480
00:22:26.280 --> 00:22:28.500
of the other paragraphs within the statute.
481
00:22:28.500 --> 00:22:31.320
So how do we avoid the gamesmanship
482
00:22:31.320 --> 00:22:36.320
that really seems to be the crux of here?
483
00:22:36.780 --> 00:22:40.770
Because, as your opposing counsel has said,
484
00:22:40.770 --> 00:22:42.540
unlike the spousal privilege,
485
00:22:42.540 --> 00:22:46.080
which is just at the moment of trial, right,
486
00:22:46.080 --> 00:22:49.290
this one goes from inquest to grand jury
487
00:22:49.290 --> 00:22:51.780
to trial to indictment or complaints,
488
00:22:51.780 --> 00:22:53.280
other criminal delinquency
489
00:22:53.280 --> 00:22:55.380
and youthful offender proceedings.
490
00:22:55.380 --> 00:22:57.870
So it seemed like the balance
491
00:22:57.870 --> 00:23:01.950
that the Legislature was striking was broader actually
492
00:23:01.950 --> 00:23:03.570
than the spousal privilege.
493
00:23:03.570 --> 00:23:04.920
So what is your response?
494
00:23:04.920 --> 00:23:09.300
You know, so the parent is not allowed to testify
495
00:23:09.300 --> 00:23:12.843
at the beginning, but then suddenly the child turns 18.
496
00:23:13.680 --> 00:23:15.090
Why would that make any sense?
497
00:23:15.090 --> 00:23:19.500
Well, Your Honor, and this isn't an endorsement
498
00:23:19.500 --> 00:23:23.070
of delaying trial in any way,
499
00:23:23.070 --> 00:23:26.760
but I would say is that mischief can be done upon the court
500
00:23:26.760 --> 00:23:29.820
in the context of the spousal privilege as well.
501
00:23:29.820 --> 00:23:34.820
And I would say that obviously we don't want-
502
00:23:35.580 --> 00:23:36.660
But not in the same way.
503
00:23:36.660 --> 00:23:38.070
Are you talking about people getting married
504
00:23:38.070 --> 00:23:39.810
in order to avoid testifying?
505
00:23:39.810 --> 00:23:40.643
Yes, Your Honor.
Yeah,
506
00:23:40.643 --> 00:23:43.383
but this is not something that you can just concoct.
507
00:23:44.580 --> 00:23:45.630
No, and it is different.
508
00:23:45.630 --> 00:23:47.370
So that, so that is-
509
00:23:47.370 --> 00:23:49.290
It is different.
totally different, yeah.
510
00:23:49.290 --> 00:23:52.743
But I think that, nonetheless, there,
511
00:23:54.690 --> 00:23:57.150
I suppose during the course of proceeding,
512
00:23:57.150 --> 00:24:00.060
someone could choose to marry
513
00:24:00.060 --> 00:24:03.862
where they perhaps could not-
514
00:24:03.862 --> 00:24:05.760
[Justice Wendlandt] At all choose to have a child.
515
00:24:05.760 --> 00:24:06.593
Is that what you're saying?
516
00:24:06.593 --> 00:24:07.588
No, no.
(justice chuckles)
517
00:24:07.588 --> 00:24:10.270
That they could choose to use the privilege
518
00:24:11.307 --> 00:24:16.307
at a trial where they weren't at an earlier proceeding.
519
00:24:16.740 --> 00:24:17.913
I think that,
520
00:24:19.740 --> 00:24:21.750
I don't have a good answer for Your Honor
521
00:24:21.750 --> 00:24:25.023
about how that can be avoided and how it should be avoided.
522
00:24:25.950 --> 00:24:29.309
But again, I do think that where the statute-
523
00:24:29.309 --> 00:24:30.270
[Justice Wolohojian] Well, you could just say
524
00:24:30.270 --> 00:24:34.863
that it will be assessed at the moment of arraignment.
525
00:24:36.060 --> 00:24:38.610
That's a possibility, Your Honor.
526
00:24:38.610 --> 00:24:41.549
I would say that's not in the statute.
527
00:24:41.549 --> 00:24:42.382
And that that's (indistinct)-
Sure.
528
00:24:42.382 --> 00:24:44.130
But neither does it say at trial,
529
00:24:44.130 --> 00:24:46.650
nor does it say at the time of communication, right?
530
00:24:46.650 --> 00:24:51.390
So you could avoid the problem of, you know,
531
00:24:51.390 --> 00:24:55.200
aging past minorhood
532
00:24:55.200 --> 00:24:58.350
by picking it at an earlier date,
533
00:24:58.350 --> 00:25:00.870
like a date that's actually within the control
534
00:25:00.870 --> 00:25:01.890
of the Commonwealth.
535
00:25:01.890 --> 00:25:04.170
But then I would say, Your Honor,
536
00:25:04.170 --> 00:25:07.410
would the spousal privilege be assessed
537
00:25:07.410 --> 00:25:08.490
at the time of arraignment?
538
00:25:08.490 --> 00:25:11.040
I think that's not something that has been read
539
00:25:11.040 --> 00:25:12.240
into the statute by the court.
540
00:25:12.240 --> 00:25:14.280
And I don't think the court could read
541
00:25:14.280 --> 00:25:17.100
Your Honor's suggestion into this paragraph either.
542
00:25:17.100 --> 00:25:19.110
I actually have a different question for you,
543
00:25:19.110 --> 00:25:24.110
which is the same question I had for Attorney Warren.
544
00:25:24.660 --> 00:25:26.680
And that is the language
545
00:25:27.900 --> 00:25:31.470
that is at the end of the first clause.
546
00:25:31.470 --> 00:25:33.960
Do you read that as attaching
547
00:25:33.960 --> 00:25:38.960
to every part of the, you know,
548
00:25:39.060 --> 00:25:41.310
all of the proceedings different?
549
00:25:41.310 --> 00:25:42.143
Yes.
You do.
550
00:25:42.143 --> 00:25:42.976
So it applies to everything.
551
00:25:42.976 --> 00:25:44.490
So then what does it mean?
552
00:25:44.490 --> 00:25:49.080
I mean, because I mean, do we have a victim in this case?
553
00:25:49.080 --> 00:25:50.100
We do not have a victim.
Okay.
554
00:25:50.100 --> 00:25:54.240
So how are we supposed to interpret this?
555
00:25:54.240 --> 00:25:58.530
I think the Legislature was carving out the opportunity
556
00:25:58.530 --> 00:26:01.710
for testimony from a child or a parent
557
00:26:01.710 --> 00:26:03.810
in an instance where there's domestic abuse
558
00:26:03.810 --> 00:26:07.590
or, like, inter-family violence of some sort.
559
00:26:07.590 --> 00:26:09.510
So are you saying that this,
560
00:26:09.510 --> 00:26:11.520
I'll just call it privilege as a shorthand,
561
00:26:11.520 --> 00:26:14.283
but it's, I don't think it's really a privilege,
562
00:26:15.570 --> 00:26:19.920
applies only in proceedings in which there is a victim
563
00:26:19.920 --> 00:26:22.290
in the proceeding is not a family member
564
00:26:22.290 --> 00:26:25.410
and does not reside in the family household.
565
00:26:25.410 --> 00:26:29.670
I read this to mean
566
00:26:29.670 --> 00:26:32.580
that a parent or child
567
00:26:32.580 --> 00:26:37.580
cannot be called to testify in the circumstances listed
568
00:26:37.770 --> 00:26:40.600
unless the victim is
569
00:26:41.610 --> 00:26:43.110
someone that lives in the household
570
00:26:43.110 --> 00:26:44.313
or is a family member.
571
00:26:45.660 --> 00:26:48.510
And then only can testify to anything
572
00:26:48.510 --> 00:26:51.780
that's not the communication about legal advice.
573
00:26:51.780 --> 00:26:52.613
Correct.
574
00:26:52.613 --> 00:26:55.620
And I think that is indicative of the careful line drawing
575
00:26:55.620 --> 00:26:57.570
that was undertaken by the Legislature.
576
00:26:58.740 --> 00:27:01.770
Did you do any, sorry, are you done?
577
00:27:01.770 --> 00:27:04.830
Did you do any legislative history on this?
578
00:27:04.830 --> 00:27:09.030
Did you look 'cause this is a modified when in 2018.
579
00:27:09.030 --> 00:27:11.074
Is that when?
Yes, Your Honor.
580
00:27:11.074 --> 00:27:15.240
And was there anything useful that you discover
581
00:27:15.240 --> 00:27:16.860
on what they were intending to do
582
00:27:16.860 --> 00:27:18.300
and why they made this change?
583
00:27:18.300 --> 00:27:20.130
I didn't find anything useful, Your Honor.
584
00:27:20.130 --> 00:27:23.910
And to be honest, the most that I found was
585
00:27:23.910 --> 00:27:27.210
in the footnote of the Vigiani case.
586
00:27:27.210 --> 00:27:28.650
Well, they did a wholesale
587
00:27:28.650 --> 00:27:29.853
swap out of the,
588
00:27:30.960 --> 00:27:32.760
this was the prior version of it.
589
00:27:32.760 --> 00:27:34.680
It related just to the parents.
590
00:27:34.680 --> 00:27:35.513
Yeah.
591
00:27:36.690 --> 00:27:39.930
But can you please, again, I know that Attorney Warren
592
00:27:39.930 --> 00:27:44.930
says that we should look to the closing argument,
593
00:27:45.030 --> 00:27:47.283
but I'm still stuck on the prejudice issue.
594
00:27:49.230 --> 00:27:53.730
A lot of what mom testified seems cumulative
595
00:27:53.730 --> 00:27:56.850
of what Detective Vovalis testified to,
596
00:27:56.850 --> 00:27:59.910
and that there seemed to be plenty upon which a jury
597
00:27:59.910 --> 00:28:01.620
could return a conviction
598
00:28:01.620 --> 00:28:03.900
just based on what Detective Vovalis
599
00:28:03.900 --> 00:28:06.930
was properly allowed to testify to.
600
00:28:06.930 --> 00:28:09.210
I'm not even talking about the video.
601
00:28:09.210 --> 00:28:12.630
Can you talk to us about the prejudice analysis,
602
00:28:12.630 --> 00:28:16.080
even if we were to find or construe the statute
603
00:28:16.080 --> 00:28:17.760
the way Attorney Warren was talking about?
604
00:28:17.760 --> 00:28:18.593
Sure, Your Honor.
605
00:28:18.593 --> 00:28:22.230
So I will be honest, the Commonwealth did not argue
606
00:28:22.230 --> 00:28:24.540
that there wouldn't be prejudice in this case.
607
00:28:24.540 --> 00:28:27.270
I think I understand what Your Honor is saying
608
00:28:27.270 --> 00:28:30.240
that the testimony is essentially cumulative.
609
00:28:30.240 --> 00:28:32.190
But the Commonwealth has to acknowledge the fact
610
00:28:32.190 --> 00:28:34.680
that when someone's own parent testifies against them,
611
00:28:34.680 --> 00:28:36.570
that is extremely powerful.
612
00:28:36.570 --> 00:28:39.990
So I think there, it would be hard to argue
613
00:28:39.990 --> 00:28:43.770
that there wouldn't be prejudice in these circumstances.
614
00:28:43.770 --> 00:28:45.810
That the detectives served a warrant
615
00:28:45.810 --> 00:28:47.910
that he was the target of and found the gun
616
00:28:47.910 --> 00:28:50.400
underneath in the room that he found him on the bed.
617
00:28:50.400 --> 00:28:52.380
So I think where you have a mother
618
00:28:52.380 --> 00:28:53.700
who's extremely emotional,
619
00:28:53.700 --> 00:28:56.610
clearly does not wanna be saying what she's saying.
620
00:28:56.610 --> 00:28:58.740
I think in those circumstances,
621
00:28:58.740 --> 00:29:02.250
notwithstanding Detective Vovalis' proper testimony,
622
00:29:02.250 --> 00:29:05.610
the testimony of the mother would've been very damaging
623
00:29:05.610 --> 00:29:09.630
to the case if it was not properly admitted.
624
00:29:09.630 --> 00:29:11.640
Counsel, can I ask for a clarification about your brief?
625
00:29:11.640 --> 00:29:14.700
So there's a discussion about,
626
00:29:14.700 --> 00:29:16.833
sorry, can we switch to a different issue?
627
00:29:17.820 --> 00:29:21.900
This is about the lack of written findings on sentencing.
628
00:29:21.900 --> 00:29:25.200
So most of your argument on that
629
00:29:25.200 --> 00:29:30.150
is that the juvenile was not prejudiced
630
00:29:30.150 --> 00:29:33.180
because the judge made extensive oral findings.
631
00:29:33.180 --> 00:29:37.740
And then you give a CF citation to an appeals court decision
632
00:29:37.740 --> 00:29:39.810
saying that an oral recitation
633
00:29:39.810 --> 00:29:43.170
of reasons for revocation when transcribed
634
00:29:43.170 --> 00:29:45.660
satisfies the requirement of a written statement
635
00:29:45.660 --> 00:29:46.893
by the fact finder.
636
00:29:48.000 --> 00:29:49.530
You don't develop an argument
637
00:29:49.530 --> 00:29:53.040
that the statute requiring a written statement
638
00:29:53.040 --> 00:29:54.780
of reasons for a sentencing
639
00:29:54.780 --> 00:29:59.760
is satisfied by the fact that a judge's oral findings
640
00:29:59.760 --> 00:30:01.530
may be transcribed.
641
00:30:01.530 --> 00:30:05.520
Are you conceding that the statute was not followed here
642
00:30:05.520 --> 00:30:06.990
and only making a prejudice argument?
643
00:30:06.990 --> 00:30:10.350
Or are you trying to argue that the holding of King,
644
00:30:10.350 --> 00:30:12.270
that case applies here?
645
00:30:12.270 --> 00:30:16.770
I am acknowledging that the proper procedure
646
00:30:16.770 --> 00:30:17.603
was not followed.
647
00:30:17.603 --> 00:30:19.410
There should have been written findings in this case.
648
00:30:19.410 --> 00:30:22.290
However, because of the judge's extensive oral findings,
649
00:30:22.290 --> 00:30:24.150
once they were transcribed,
650
00:30:24.150 --> 00:30:26.610
there's no prejudice to the juvenile.
651
00:30:26.610 --> 00:30:27.953
Okay, thank you.
652
00:30:29.370 --> 00:30:32.273
If there are no further questions, I'll rest on my brief.