-: SJC-13636, Commonwealth versus Weber J. Andrade.
-: Okay, Attorney LeVert.
(paper flapping)
(attendee clears throat)
-: Good morning. May I please the court?
My name is Suzanne LeVert and I represent Weber Andrade.
I don't believe that Mr. Andrade got a fair trial this time,
because his trial attorney
refused to admit a specific relevant violent act
that would've helped the jury assess,
would've created a fuller picture
for the jury to assess his defense of self-defense.
In addition, she failed to instruct on defense of another
when she herself recognize in the course of the trial,
and doing so was prejudicial error.
I think that Mr. Andrade deserves a new trial.
-: If that evidence of the post,
the victim's post-
-: Subsequent. -: Behavior, right,
subsequent behavior, had come in,
tell me how it would've made a difference.
-: Well, it would've...
The issue was, as you know, in these cases,
is whether who was a first aggressor
or who escalated the assault.
And I think the record is unclear to the jury.
It was seen on very fuzzy surveillance tape.
And the testimony of the two, (attendee coughing)
of the witnesses were conflicting.
We know that there was a physical interaction
between Weber and his father.
-: [Chief Justice Budd] But the father started it, right?
-: It seems.
-: Well, I mean, that would be best for your client.
And that's- -: Yes, I know.
-: Yes. Okay.
So, the father started it, apparently.
-: Apparently. -: Mm-hmm.
-: And he was also a bigger man
and he forcefully pushed his son,
but then the son leaves
and goes downstairs, the father follows him.
And what happens in that minute or so
before the stabbing takes place is unknown.
No one knows what that is.
-: There was a video.
There was a video of your client in the driveway,
which I take it was before the stabbing.
Attorney LeVert: It was both before and after.
-: Okay. And there was a second man in the video.
The second man was not the father, was it?
-: No. -: Okay.
So, at least we know a little bit
about what happened before the stabbing.
And that was that he was not with the father,
but he was with another man.
-: I believe.
I could be mistaken, but I believe that the scene
with the other man was following the stabbing.
That was just before Weber left the scene altogether.
-: Okay. -: And it would've been
nice- -: Is that also the moment
when the video shows him with the knife in his hand?
-: Yes.
Now, it would've been nice if that man
that he was with was ever found by police and questioned.
He was found by police,
but they failed to question him thoroughly
or take a statement from him.
So, we have no idea what his perspective on the event was.
-: Was there any evidence that the father
was in close physical proximity
to the defendant's wife before the stabbing?
-: Well, her testimony is that he came at her
and was pointing a finger
in her face. -: That was on the stairs
when she was downstairs and he was upstairs.
So, my question was a little bit different.
-: I'm sorry. -: My question was
right before the stabbing, before the stabbing,
so this is not on the stairs.
-: Okay. -: This is down in the yard.
Was there any evidence that the father
was in close physical proximity with the defendant's wife?
-: It's a confusing piece of evidence,
but he testifies that she was coming towards him
and talking to him, but he did not understand
what she was saying (attendee coughing)
and didn't have a conversation with her.
But she was coming towards him and talking to him,
and he was still yelling at her.
-: So, how would that help defense...
How would that help support a theory
of defense of another if the victim is approaching,
if the wife is approaching the father?
Because right, because she would be going towards the harm
rather than needing protection from the harm.
-: I don't think that would support that,
but there was so- -: Okay.
So, then how does your client
get to piggyback on her for defense of another?
-: Well, the judge herself brought that up,
'cause she heard the testimony of him coming at her
and continually yelling at her
and being very aggressive with her throughout,
even after he was stabbed,
he got back on that porch and was yelling at her
and telling her she could not come
into the house again even to get her children.
He was very, very angry.
And I would think it's, we're all supposing these things,
but I would think that if I were her husband
and saw a father that aggressive towards the wife
and pointing at her and putting his finger in his face
and coming that close to her, he would be upset.
-: Now, we've discussed prejudice,
but let's get to the legal issue
about whether it was error on the agitant
-: Okay. -: instruction.
I take it from your brief that this issue
of subsequent misconduct
has not been decided by our agitant cases, correct?
-: It seems not. -: Okay.
And we can look at bad act evidence,
misconduct evidence for analogy.
Attorney LeVert: Mm-hmm.
-: And I think we allow subsequent misconduct.
It's not uncharged, it's uncharged misconduct,
not prior bad acts,
it's a misnomer. -: Right.
-: Why should we have the same rule for agitant
when agitant is a carefully, narrowly prescribed law
that is essentially propensity evidence?
So, why should we align the two doctrines?
-: Well, I think the thing (attendee coughing)
that got me started on this
was realizing in agitant itself,
knowledge by the defendant
of the victim's act was not required.
He didn't need to know- -: But that's...
Right. That's the old law.
That's fonts and pitch, right?
So, we've said just to extent it,
it allows the jury to give them details
on who the likely first aggressor is.
We're gonna allow this.
-: And so, temporality doesn't seem to make a difference.
And what I think the judge in this case did not do
is weigh the evidence,
probative against prejudicial. (attendee coughing)
She didn't weigh it,
she just said nobody's ever said subsequent.
So, we can't say it's always prior. It's always prior.
But as we saw,
the amicus brief that was submitted
went through the five states
that have a similar agitant rule.
And they found that
subsequent bad acts are just as relevant.
If they're relevant to the issue, they're admissible.
-: But how could it be error for the judge to do something
that we have never explicitly said the law recognizes?
How could that be error?
-: Well, if you look at what happened in agitant itself,
the way the court ruled
was that that judge did not make an...
What she did was understandable.
And yet, we ruled that she made a mistake.
It was a mistake of law.
It's just a mistake.
-: [Justice Wendlandt] Can you just walk me
through the rationale
for extending agitant to subsequent acts?
(attendee sniffles)
-: Well, again, the...
If the- -: I mean given that
as Justice Gaziano was pointing out,
it's a really narrowly crafted exception
and an agitant itself, we were following
a near universal slew of jurisdictions
that allowed that kind of propensity evidence in.
-: Well, again, what hooks it for me
is that if the victim doesn't,
I mean, if the defendant does not need
to know if his knowledge is not the point,
whether he knew or not, it's how the information can be used
to educate the jury about the events of the night.
-: But didn't...
One of the reasons that the trial judge did not allow it
was this theory, (attendee coughing)
whether or not it's valid,
that because the victim had been stabbed,
he became aggressive subsequently.
And so, the subsequent acts
do not necessarily tell us anything
about his aggressive nature in the moment.
-: Perhaps, but that would be what the jury would weigh.
If the jury province (attendee coughing)
to look at the evidence and weigh it.
Not an admissibility question.
It's whether they believe it or not,
or whether they would assess it
to be in the favor of the defendant.
Justice Gaziano: Should we con consider that factor
in assessing how probative that evidence is?
-: I think it be- -: The judge
didn't do a 403 analysis,
but should we consider -: No.
-: that when we decide whether you,
it's either probative and/or prejudicial?
-: Yes, I think so.
-: Sorry, can we go back to the question
that the chief started off with, which was,
can you just walk me through quickly
in this case, how was it relevant?
And in your answer, can you address that the judge actually,
as far as I could see, did not instruct on first aggressor.
The judge instructed the jury
that the defendant could not raise self-defense
if they found various things,
but one of them was not first aggressor.
It seems to have been uncontested
that there was a video that...
And so, can you address?
And so, it's not first aggressor
and it's not the defendant's own knowledge
because this is a subsequent act by the victim.
So, how exactly is it purportedly relevant here?
-: Well, I think it's very relevant,
because the act that was suggested to be admitted,
proffered to be admitted, was an assault by the victim
of his own wife who was also there that night.
This is the whole family event this happened.
And (attendee sniffles)
if you read the evidence carefully,
the fight, the issue of the fight
was proffered in the kitchen
between Jose Andrade and his wife, Hope,
and that's who Jose assaulted a year later,
and pushed her to the ground.
And I think that would help the jury
understand the dynamics of this family.
-: But it wasn't really contested that the victim was upset
and was lashing out
and was pushing the defendant and so forth.
So, how does it actually, you said at the beginning,
this fills out the picture of what occurred.
And can you just very precisely say
what is the fact that it makes more probable
that was relevant to the jury's conclusion?
-: Well, I disagree.
I don't think that the surveillance tape
was that clear of what was happening between them.
And so, evidence that Jose
had this violent nature would be relevant to the jury
when assessing the facts that look on the surveillance tape
and would help them decide (attendee clears throat)
if the self-defense claim
was more likely than not to have to be relevant.
I think it would fill out the picture,
give the jury a full picture of the events.
-: How would that not be propensity evidence?
I'm having a hard time understanding.
To me, it sounds like what you're saying
is this would be propensity evidence.
-: It's a very narrow specific act. It's not a reputation.
It's that he behaved
in this way towards this person at one time.
And that would be a...
It's not as if the defense came in
and said we have six incidents
of this event, of this behavior.
It was one event against a person again
who was there at the same barbecue. (chuckles)
And I don't think it's propensity events.
-: What's the time lag between the charge conduct
and the subsequent bad act? -: 14 months.
-: 14. Okay, thank you.
-: And in other cases that were cited, and I can't re...
My printer didn't work this morning.
There was some cases that they didn't,
they didn't accept the subsequent acts because,
or actually, prior acts,
because they were so distant in time,
they were four years behind.
Well, this is 14 months. It's not all that long.
-: Counsel, I just, I'm getting a little bit confused
by your argument, so I just wanna make sure I have this.
-: Yeah. -: So, you're saying
that the subsequent act would not be relevant,
would not be admissible for propensity purposes.
So, are you saying that it would be admissible on the issue
of who was the first aggressor or who escalated the event?
For what purpose would it be offered is what I'm getting at?
-: It would be offered for that to help the jury
identify the first aggressor and/or who escalated the fight.
-: On the second issue,
is there any dispute as to who escalated the fight?
It seems your client brought a knife to a fist fight.
-: Well, he didn't bring it,
it was there. -: Okay.
-: Even barbecuing. -: Okay. You know what I mean.
You know what I mean. -: Well, I know, but he...
-: Okay, but he used the knife in a fist fight.
-: Yes. -: Okay.
So, is there any real question as to who escalated this?
-: Well, it's the why.
Did he feel threatened?
What did he feel that his father was so aggressive
that it could at any moment,
turn to be dangerous for him, physically dangerous for him.
And the scene on the deck certainly made that clear.
He was pushing him and he was a...
-: Okay. And just- -: Okay.
-: Thank you. -: Thank you, counsel.
Your time has expired. (attendee clears throat)
(attendee coughing) And I guess the one thing
I did wanna make sure the court recognizes
that in the amicus brief,
-: We've got it. -: but that there are
other states who also found the same thing
that it didn't matter
whether it's before or after. -: Thank you.
Thank you, counsel.
-: Thank you so much. -: We have it all.
Okay. -: Thank you.
-: Okay, Attorney
(indistinct)
Jang.
-: Good morning.
May I please the court,
Kristen Jang for the Commonwealth.
It is quite well-settled that agitant evidence
is one of the few narrow exceptions
to the general bar on propensity evidence.
When the trial judge in this case
excluded the proffered evidence
of the victim subsequent violent act,
no published case in the Commonwealth
had explicitly extended this narrow exception.
Justice Gaziano: So, same question
that I asked counsel. -: Yes.
-: We haven't said one way or the other
whether or not agitant is subsequent or prior, correct?
-: Yes, that is correct. -: Other than
what you let off with the scenario exception.
-: Yes. -: On uncharged misconduct,
that also entails subsequent misconduct, correct?
-: That is correct. -: Why a difference?
-: Well, and I will concede that the amicus brief
filed in this case lays out a lot
of really great policy arguments
for extending the agitant principle to post-crime conduct.
The Commonwealth does not contest that,
and this court is obviously able
to make a new rule going forward that agitant evidence
explicitly applies to post-crime conduct.
I think the tricky
and sticky question here (attendee clears throat)
is at the time that the judge was faced with this question,
was it- -: But if there's no guidance
and the judge basically,
through no fault of the judge's own,
-: Right. -: basically could go one way
or the other.
And we disagree and says it,
because the judge categorically said no,
it's subsequent, its out. -: Correct.
-: So, if we disagree with that, that's an error.
And then, we get (attendee coughing)
into whether or not there's prejudice,
which is a big issue in this case.
-: Yes. And I'm happy to speak on that.
I, you know. -: But would would it be
error though if the judge doesn't realize
they have the authority to do something
and they don't do it?
Is that legal error?
-: Yes, unfortunately,
I think the case law is fairly clear that a failure
to recognize discretion is an abuse, is an error of law.
I think the judge was in a pretty
difficult situation there. -: No, I'm not saying
it was easy having been reversed
and haven't made calls, -: Right. (chuckles)
-: having made calls that did turned out to be wrong.
I fully appreciate that. (Attorney Jang laughing)
Attorney Jang: Yes.
-: So, you're now
gonna argue prejudice? -: Sure.
-: Lack of prejudice. -: I'm happy to move on
to the prejudice. -: Before you do that,
just one last question
on the rule itself. -: Yes.
Yes. -: Because the trial judge
says, look, we don't know whether this crime itself
-: Yes. -: changed the defendant.
Attorney Jang: Yes.
-: There's some logic to that,
isn't there? -: Absolutely, absolutely.
And in reading actually, the amicus brief was very helpful
to me in thinking through the reasoning
that other just jurisdictions
have gone through about deciding this issue.
And that was raised in a few cases.
I think though that when the judge
is considering agitant evidence,
there's also a 403 analysis that goes,
that the judge has to go through.
So, I think that fits more neatly into that 403 analysis,
you know, if the judge wants
to have a mini voir dire perhaps.
That's an issue in the case,
that could be hashed out. (attendee coughing)
But the problem is I was able to think of lots
of scenarios in my head where a post-crime violent act
would be extremely probative
of whether the victim was the first aggressor.
And the cases that are cited
by the amicus brief are rife with examples of that.
So, to say that it's an absolute bar
for that reason, I'm not sure is correct.
-: So, you would have no problem if we decided that agitant
should be extended to subsequent
bad acts or- -: Sure.
So long as that's still that 403 analysis,
which I think there has to be.
And this considerate, -: Okay.
-: I think the judge's point that perhaps the crime
that it's an issue may have changed the victim
in some ways is absolutely relevant
and should be included in the analysis
if it's applicable in the case.
-: [Chief Justice Budd] Okay. So, back to the prejudice.
-: Sure.
On the prejudice issue,
so the defendant's self-defense claim
in this case was extremely weak.
It was presented largely through cross-examination
of the Commonwealth witnesses and argument from counsel,
the defendant as he's entitled to,
exercise his right not to testify on his own behalf.
The proffered evidence
that the victim 14 months after the defendant stabbed him,
pushed his wife during an argument, would've offered little
to support the defendant's claim of self-defense,
let alone who was the first aggressor in this case
or who escalated the conflict between the defendant
and the victim. -: Why not?
-: Because there's a video a few minutes before
showing the victim very clearly pushing the defendant.
I think that's far more probative than 14 months later,
he pushed a completely different person.
-: So, your reasoning is it's cumulative?
-: It's cumulative. The timing is...
14 months is quite a long time in this case.
Also, this issue wasn't really disputed.
Who was the first aggressor who escalated?
It wasn't really disputed in this case.
There was a video showing
that there was this physical confrontation
between defendant and victim up on the deck.
There's no way to dispute that because it's on video,
which shows them both coming down the stairs.
And then, the only thing we know about what happened
down in the backyard is the victim's testimony saying,
"We went to different parts of the backyard.
I was standing by the lawnmower
and the defendant's wife came walking towards me.
We were starting to talk,
and then the defendant stabbed me
out of nowhere." (attendee clears throat)
And there was really no testimony
or no other evidence to controvert that.
So, I'm not sure what real value evidence
that 14 months later the victim pushed his wife
during an argument would've had for the defendant's case.
And I'm happy to speak on the other issue as well,
but if there's no further questions,
I'm also happy to rest on my brief.
-: Okay. Okay. -: Could you just
-: Sure. -: do us the favor
of running through the defense
of another issue?
-: Right. Sure.
-: 'Cause I do wanna make sure
that I have you down (attendee clears throat)
for why that would be.
-: Absolutely.
So, there are cases that clearly state
that where the facts permit, a judge is required
to instruct on defense of another
even in the absence of a request for the same.
The case law is also very clear that this is not required,
where the defendant has not relied on
or even mentioned that defense at trial,
which I think is directly applicable in this case.
And I cite the Norris case, a 2012 case, in support of that.
And I think Kivlehan is also a good example
kind of in contrast
to where it was required even absent a request for the same.
-: Well, there are going to be cases where the evidence,
I guess would be more robust in favor of the defendant,
but the scenario here where there's this barbecue,
-: Mm-hmm. -: the defendants
or him and his wife invite people that folks want to leave.
Attorney Jang: Mm-hmm.
-: There's clearly an altercation
going on between the victim and the defendant's wife.
There- -: Yes.
-: Wouldn't it seem, again,
even though there are more robust cases here,
couldn't in the light most favorable to the defendant,
we see a scenario where father or not,
he's approaching his wife,
he's yelling at his wife, he's pointing at his wife.
In the light most favorable to the defendant,
isn't there a good argument here
that he gets defensive another?
-: I'm not sure where the defendant's wife also testified
and she didn't really corroborate
that version of the events.
I mean, her testimony was a little confusing,
because she did say she got between them at one point,
but that is not shown on the video.
So, it is a little confusing.
But if the victim had credibly
and which was matched up with the video evidence said, yeah,
when they came down the stairs,
the victim was continuing to yell at me,
got in my face, (attendee clears throat)
was walking towards me, sure, I could see a case
where this instruction maybe should have been given,
but that's simply not what happened in this case.
Justice Georges: Thank you.
-: Okay. Happy to rest on my brief.
Thank you very much.