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Hey, hey, hey, all persons having anything to do before the honorable justices of the Appeals Court now sitting in Boston within the Commonwealth, give your attendance so you shall be heard. Now, State Commonwealth of Masters Court is open. Please be seated. Good morning. Welcome to the Appeals Court. I am Justice Me. With me today are Justice Sachs and Woods. We'll be the panel on all of our cases today. If you haven't been here or if you have been here before, each side gets 15 minutes. You needn't use all your time. We do not entertain rebuttal. We have read everything. My best advice is to get right to the point. With that, I'll call our first case.

open please be seated Good morning. Welcome to the appeals court. I am Justice me. With me today are Justice Sachs and Woods. We'll be the panel on all of our cases today. Um, if you haven't been here or if you have

24P993 Commonwealth versus Rivera. Mr. Hixon, if I may begin, Your Honor. Good morning, and may it please the court. There's the kind the defendant had to brief nine issues in this case, and that would seem unusual, but the number of the charges mandated that, and the errors the defendant has identified required that. That said, I'd like to emphasize arguments one and two because they reflect on the greatest liability of the defendant. The first issue, and this would be an overarching issue that would apply to all the defendant's convictions involving sexual assault allegations, is the expert testimony of Dr. Stephanie Black. I think that there are several cases that say that her testimony is good and it's very specific testimony, but I would respectfully submit that her testimony is not good testimony.

24p993 Commonwealth versus Rivera. Mr. Hixon, if I may begin, your honor. Good morning, and may it please the court. There's the kind the defendant had to brief nine issues uh in this case and that would seem unusual but the

Is there any case, Mr. Hixon, that this court, the SJC, has said that Dr. Black's testimony was improper? Well, in terms of, I do cite one case that said her specific testimony toward the delayed disclosure is not good testimony and shouldn't be received. That's what her specialty is. I thought, well, it is her specialty, and she may be an expert in that, but that doesn't mean it's evidence, and that doesn't mean it should be submitted as evidence at a court of law in a serious case. Her testimony is simply children evidence disclosure, and I don't know why expert testimony is required, and neither did the court in the case, I believe it was Dargon, mentioned it.

first issue and this would be an o overarching issue that would apply to um all the defendants convictions involving sexual assault allegations is the doc uh is the um expert testimony of Dr. uh Stephanie Black. I think that there's uh

And the reasons are insubstantial or actually they're substantial, but in terms of evidence of an expert, mentions shame, fear, all those things are well within the jury's comprehension. And even worse, I mean, that delayed disclosure was not an issue in this trial. I think there's a latent bias against sexual assault victims. They're often not believed because they didn't make prompt disclosures. Well, I think that was true, but I don't think that's true now.

testimony was improper. Well, in in terms of uh I do um cite one case that said uh her specific testimony is toward the delayed disclosure is not uh good testimony and shouldn't be received.

Did you offer any empirical evidence of that at trial or in the motion? There wasn't an objection. There was no objection in the record. There was a motion to eliminate there. Well, I think she was found qualified, and I mean, I can't dispute that. I don't remember that specifically, Your Honor, I must admit. But in any, well, I mean, you say that counsel was ineffective for not objecting, but he did object to the allowance of the motion in limine. If that's the case, and I certainly am wrong, but there's nothing wrong with otherwise arguing that point and seeking to strike it given its insubstantiality.

serious uh case. Um, her testimony is is simply children um evidence disclosure, and I don't know why expert testimony is required, and neither did the court um in the case uh I believe it was Dargon um mentioned it.

I think there was a time, and there's a real history, excuse me, there's a real history in terms of how evidence has been admitted in sexual assault cases. There was a bias toward children. And if you've lived long enough and practiced long, you realize that it was very difficult because adults were always given the benefit of the doubt in these cases because the doubts were like football coaches and ministers and all that sort of thing, and children were disbelieved. Now, I think that does not occur now. It's not. But so can we just stick to the case law, the precedent? So I think what you said is that you had one case. I think you're talking about Dunl, which is a Pennsylvania case. Yes. But the closest Massachusetts case, it seemed to me that you cited anyway, was Deloney from this court. But Deloney, I think, merely says that it's within the judge's discretion whether to admit expert testimony on delayed disclosure. So what I'm interested in, do you have, well, first of all, did I characterize that correctly? And second of all, is there a Massachusetts case which adopts your position? I guess that—

that delayed disclosure was not an issue in this trial. I think it it's it's uh there's a latent bias against sexual assault victims.

Okay, so you're asking us to change the law. Is that what you're asking us to do? Well, I mass and apply principles as I understand them. I think the court was in error, and the court, the jurisprudence. I think the foreign court that I cited, Pennsylvania, you mean, has a much better take on this, especially on delayed disclosure when it's not in evidence in the case. It's simply basic evidentiary standards. It's prejudicial, but it's not evidence.

There there wasn't there wasn't an objection. There was no objection in the record. There was a motion to eliminate there. Well, I I think she was found qualified and I mean I I can't dispute that. Um I don't remember that

At least one of the victims said that she delayed her disclosure because she was afraid of the defendant, right? And that's testimony, but why couldn't that testimony be simply credited along with all the other voluminous testimony? She didn't treat any of the victims, and she didn't indicate, she didn't testify about anything in particular about the victims, right? No, she didn't. And that her lack of knowledge of the victims, and that's an evidentiary, apparently, a prerequisite. But I mean, what happens is when the expert in a case like this has no knowledge of the case, I mean, I would suggest that her testimony really is much more along the lines of simple punditry. Her words and her teaching would be good for a course to police. Are you saying that it would have been better if she had treated the victims? Well, I think there should be some knowledge with the facts, but I mean, I don't think she should have testified at all. I don't think she was a qualified witness. She's not.

wrong but there's nothing wrong with otherwise arguing um that point and seeking to strike it given its insubstantiality.

I'm sorry, but you don't have a case in Massachusetts. I'm just trying to—We have to follow the precedent. The precedent, as I understand it, unless you tell me otherwise, in Massachusetts is that it is within the judge's discretion. Regardless of whether I think that's good or bad, I have to apply the precedent. So, it sounds like you're saying I think you have to say the judge abused his or her discretion. I can't remember.

lived a long enough and practiced long, you realize that it it was very difficult because adults were always given the benefit of the uh doubt in these cases because the doubts were like football coaches and ministers and all

Well, go ahead. So, is that what you're arguing? Well, I would say the judge abused her discretion, but I think my point's a larger one. I mean, it's supposed to be evidence before it comes in. And I think it's even to say that it's prejudicial without being probative. That would always be before the court. The court's always supposed to perform a gatekeeping function.

case I think you're talking about Dunl which is a Pennsylvania case. Yes. But the the closest Massachusetts case it seemed to me that you cited anyway was Deloney uh from this court. But Deloney I think merely says that uh it's within

The judge did give careful limiting instructions at the time and then in the final charge, right? But yeah, but you know, expert testimony when the witness testifies on and on and on about their qualifications, pages and pages and pages about the witness. I mean, limiting instructions are good, but the jury should have never heard the evidence. And once again, I will make a bold statement: we have to presume that the jury followed those instructions, including that they needn't credit her just because she's an expert.

Okay, so you're asking us to change the law. Is that what you're asking us to do?

Well, I don't think the jury should have heard the evidence. It's not. And I'd even say this, it's not evidence. It's punditry. It really should not be in. Well, I mean, I read her testimony. I guess I would push back on that. I think that it's pretty fair to say that her course, her study is among other things the reasons why kids delay in reporting sexual assault. It's an empirical exercise. She's trying to identify. She and a whole bunch of other professionals act in the field are trying—

has a much better uh take on this, especially on delayed disclosure when it's not in evidence in the case. It's simply basic evidentiary standards. It's it's prejuditial, but it's not evidence.

At least one of the victims said that she delayed her disclosure because she was afraid of the defendant, right? And and that that's testimony, but why couldn't that testimony be simply credited along with all the other voluminous testimony?

She didn't she didn't treat any of the victims and she didn't indicate uh she didn't testify about anything in particular about the victims, right?

No, she didn't. and that that her her lack of knowledge of the victims and that that's an evidentiary apparently a prerequisite. Um but I mean what happens is when you when when the the expert in a case like this has no knowledge of the

case. Um I mean I would suggest that her her testimony really is it's much more along the lines of simple punditry. Her her her words and her teaching would be good for a course to police. Are you saying that it would would have been

better if she had treated the victims? Well, I think there should be some knowledge with the facts, but I mean, I don't think she should have testified at all. I don't think she was a qualified witness. She's not.

I'm sorry, but you don't have a case in Massach I'm just trying to We have to follow the president. The president, as I understand it, unless you tell me otherwise, in Massachusetts is that is within the judge's discretion.

Regardless of whether I think that's good or bad, I have to apply the precedent. So, it sounds like you're saying I think you have to say the judge abused his or her discretion. I can't remember.

Well, go ahead. So, did is that what you're arguing? Well, I would say the judge abused her discretion, but I mean I think my points a larger one. I mean, it's supposed to be evidence before it comes in. And I

mean, I I think it's even to say that it's prejuditial without being proative. Um, that would always be before the court. The court's always supposed to perform a gate fun gate uh keeping function.

The judge did give careful eliminating instructions at the time and then in the final charge, right?

But yeah, but you know, expert testimony when when the witness testifies on and on and on about their qualifications, pages and pages and pages about the witness. I mean, limiting instructions are good, but the jury should have never heard the

evidence. And once again, I will make a bold uh we have to presume that the that the jury followed those instructions, including that they needn't credit her just because she's an expert.

Well, I I don't think the jury should have heard the evidence. It's not. And I I'd even say this, it's not evidence.

It's punditry. It really should not be in Well, I mean, I I read her testimony. I guess I would push back on that. I I think that it's pretty fair to say that her course uh her her study is among

other things the reasons why kids delay in reporting sexual assault. It's a she it's an empirical exercise. She's trying to identify she and a whole bunch of other professionals act in the field are trying to quantify the reasons kids give

for delaying disclosure. And so there she's trying to it's not punditry, it's actual science. And it's so I so I that seems plausibly relevant if delay is something that we think could be used improperly to assess credibility. So in

other words, what you're saying just doesn't make sense to me. That seems like a more reasonable argument that it's relevant to credibility. Why is it not relevant to credibility? because that form of credibility delayed disclosure was not relevant uh in this

case. It's simply to me it's very strange and you know I can't say that u I viewed the the juror's prudence of the court um not this panel of course not the appeals court but I mean to simply say that um

that children don't for various reasons you need expert testimony and I mean my response to that is they're children why wouldn't why would a children what is a child supposed to do run to the police dial 911. I mean, this is well within

it, especially in the year 2020. It's not that way with all the disclosures. And I know that's written on a large canvas, but you know, when she just simply says, well, fear, shame, disclosure. I mean, it's like taking the

source and writing up the words for negative emotions there. And it has nothing to do with this case, and it wasn't an issue. The defense was the children made up these stories because he took her telephones away. And that's

also in the culture. telephones, cell phones of adolescence and children is now a big issue out there in our society and we do operate in the society here as we did with children testimony through history and it's just to simply have

it's simply opinion it's vouching in in this under these circumstances uh it's simply it doesn't have a base if there was a delayed disclosure and there is a recent case um Commonwealth versus Andre 106 mass 2020 There was a vast disclosure of time

passing from the incident to the investigation to the final reporting to um the testimony and we're talking like 25 years. I think that that could be much more relevant but to simply say yeah to simply just say um there was

delayed disclosure uh in this case and it's just the way the testimony came out it was like well children do this because of this and this and this and this. I just think that's completely biased. It's simply putting in a whole

amount of evidence that was not relevant in trial and just simply say well believe the children because children do this. I think it was very prejuditial and it shouldn't be admitted. This evidence is once again I say it's not

evidence. I don't think it made anything more probitative or if it did barely. So it was it was prejuditial without being probitative and it applies to all the convictions uh in this case. So I don't I I think this is more damaging than u

the current jurist prudence would admit it and I think this case is an example of how that can happen. Um oh I think I made my statement on that issue your honor. Um the medical records um they were not properly uh redacted. Um and

this this the court has unfortunately decided that saint interviews are part of the medical records in my opinion. Um no one particularly cares but it's I don't they're an investigative they're in police investigative tool. I've lost on that point, but this shows the

problem when it is where where the witness will basically say what happened to them. Now, that's a here statement, but it's given the benefit of being a medical record. Um, and you know, given in a police guise that um there were

terrible statements once again, they should Can I ask I I think uh that there was no objection. And I think more than no objection, I think the part the the council for both sides worked together to go through the medical records and

there was and so you have to establish a substantial risk of miscarriage of justice. Right.

I do believe there's a substantial risk of a I just want to make sure I got the standard the standards admittedly I I am operating under a substantial risk of a miscarriage of justice on all the these issues

and that that leads to a problem. How can there be no objection? There was no objection to anything, but that's a lawyer's complaint to a large degree.

But in this case, um you know, the the what was admitted was um very damaging.

Um there it's one-sided and has the impromatter of both medicine and law enforcement on this. Now, I don't blame the notes that the notes um employed the masculine pronoun he. it they did not identify the defendant as having done

anything. No, I don't I don't think the defendant was identified, but the acts were specifically identified or you know there there was more than medicine, let's put it this way. So I I think it is prejuditial to him and they're the

only medical records entered. So this the the fact of the sexual assault you say does not go to medical treatment.

No, sex sexual assault can, but I mean it's repeated constantly and I perhaps that should even have been redacted it itself. But I I don't want to go too far. I my my target is very specific entries uh in the record. But I mean

you're completely repeating this the way the records came in. Then help me out. Which which entry do you say created a substantial risk? Particularly the record um in the the sane interview and I I do I do quote

them in my brief. Uh he he does it a lot. Um in the medical record um I don't want to quote my brief, but I mean it says I saw three remarks or three three comments that you objected to. Yeah.

Um he entered her room. He said we had to do it and he put his penis in her vagina. Never says who he is.

Those are the three that you object to. Yeah. Those are the three I can find.

But I mean the profusion of the Do you think it makes a difference that they uh those comments don't identify the defendant?

No. No. Because there there's no doubt who was being talking about. I mean there there's and uh either either the the either the complaintants were believed or or they were not. Um and I would I would say that uh you know that's a

whole different form of of testimony um that allowed that. It should not that those those statements should have been redacted. they're prejuditial in so far as they weren't. I mean, it's an ineffective assistance of council plan to to let those in. But, I mean, I can

only go so far on a direct appeal with that argument, but I mean, I would say that those were prejuditial when you put it together with the the doctor's testimony. I think it is it is prejuditial. The factf finding process

was So, if those I mean, the defense here was essentially they made it up. Is that correct?

Yes. Would these um statements in the same report have come in as prior consistent statements if they'd come in on rebuttal or after cross-examination where Yeah, I mean it it it's possible that they could have. Um but I speculative I mean at this point

in rehabilitation or something I don't know. I couldn't I couldn't go that far. Um I was under space limitations I point out but I mean I think that this is the way the evidence came in um and it came

in in a prejuditial form. Right. Leave it there. Thank you. Your time is up.

Well I have more arguments but that's okay. Your honor. It's always the way. Miss Payne.

May please the court Cynthia Payne for the Commonwealth. Commonwealth is asking this court to affirm 32 of the 33 convictions. Just to touch briefly on the two issues that my brother raised. Uh Dr. Block, this court has found in numerous times that Dr.

blocks testimony is uh where the judges found she can testify there is no abuse of discretion and the case that my brother referenced uh cometh v Andre that was a case in which Dr. Block testified. That was a case in which the court uh found

that um Block could testify as to delay disclosure, which is what we had here, albeit not as long as in the Andre case.

And also the fact that um in that case, Dr. Block also didn't know the facts of the case, had never treated the the victims. Um and again, the court found that that was immaterial um for the point of her testimony.

um numerous 123 uh 23 and 128 cases um that this court has has found her testimony to be permissible.

I think you'd take the position that Dr. Block not treating the victims avoided the prejudice.

Exactly. Exactly. Um this court has found in in certainly other cases mostly drug cases that it can be a problem when uh the person who's an expert has also either treated the victims or has been involved in the case.

Actually on that point and uh Dr. Block does testify I'm looking at uh transcript volume 7 page uh 85. Um she talks about um one of the reasons for false disclos delayed disclosure is fear and explicit threats or bribes. Um and

so for example that child might be the only child in their house that got a cell phone. Now I want to be clear I I understand your point that Dr. Block never didn't know anything about the facts of this case. I'm not suggesting

she did. I'm not this seems like just random unfortunate luck but that tracks one point in the case where there is an allegation that the defendant um was let me see if I can get you know it better

than me probably but broadly uh threatened to ground one of the victims to smash her phone um and uh he would get them to do stuff to get their phones back. Is that Can you talk about that for a second? Is that an I mean I'm to

be clear I think it's totally unintentional but but it's unfortunate. Would you agree with that?

I would say that having or taking away cell phones is so common that that was certainly a reference that the jury could could understand and the fact that it happened in this case again such a common thing. Uh victims also testified

that the defendant in some cases would would give money. So and certainly Dr. Block didn't testify as to anything about that. So, the fact that she referenced cell phones, I would suggest um and I know my my brother referenced

the Delhoney case. In that case, the court found that the expert um the way that they the expert talked about the profile was too closely aligned, right? That's the principle I'm talking But I but I would suggest that this this

case is nothing like Deloney with the exception of the rather off-the cuff cell phone removal.

Right. Okay. Um in regards to the redaction of EC's medical records, I would suggest that the medical records were were replete with redactions. There was no reference to assault, sexual assault. There was sexual intercourse and penetration. But I would suggest that certainly that was

necessary for the point of that is why the victim EC was brought to the hospital to be examined because of this allegation. Um well what about the the statement he did it a lot? That seems to me not relevant

to treatment and it seems potentially prejuditial. I would say he he did it a lot.

Certainly references to I mean this is a child who has been being sexually abused and he did it a lot. could have certainly vast ramifications medically, whether it's a a uterine UTI or um a sexually transmitted disease, I

I would suggest that that reference um is not is not error. And e even if even if this court could possibly find it was error, and I would definitely not concede that, I would suggest that it was very cumulative. It was cumulative

of um EC's testimony. Uh you agree though the smashing of the phones just not medical really?

Oh, definitely. But I would suggest that that played right into the defense theory that um the defendant had a terrible temper and that the girls had made it up and that again played well into the defense theory. And as my

brother indicated, this was a direct appeal. Certainly a motion for new trial could have been been filed and that could have been fleshed out. Uh I would suggest that that this case was extremely well tried by both the

Commonwealth and Defense Council. Can you remind me that in the closing argument did defense council explicitly reference the um fact that the the kids were ups one motivation for false accusation was the destroying of the phone?

Yes. Yes. I believe in fact that was the the very first sentence of the closing argument.

Right. So I guess that might be a tactical reason to not object. I mean apparently and again correct me if I'm wrong. The parties actually went over the medical records together and they're going through we're going to redact

this, not redact that. It's not the defense council it's not a case where defense council just didn't think about it. That's exactly correct.

Thought about it and apparently went through that and said I'm not going to redact that. and then mentions that the cell phones. So, it seems like this is if you're going to argue that that was ineffective assistance, you got to have

an affidavit explaining explicitly I didn't do this. Exactly the comm's point, your honor. Um, again, I I would suggest that that played into defense council's theory. I I would like to touch briefly upon the um my brother's issue six, which was

open and gross um sufficiency argument. And I would just like to point out that um I Conwell cited Kesler in its brief which is which is good law as to the jury um I I would suggest that in Kesler the

jury instructions had been at back at that time was was public exposure. That has that has changed. Um the jury instructions itself has changed. It has always been that the conduct need not happen in a public place, but but now um

jury instructions are uh openly either intended exposure to another or recklessly disregarded. There's no public. Um I just wanted to point that out to the the court that I should have omitted the word public in in my brief

even though that was it's that element in is set out in the disjunctive. Right.

Correct. Correct. Can I can I just uh I want to go back to the medical records for a second. I'm trying to uh work through you you made this argument in passing that uh if there was any error in any of the

statements coming in it was cumulative. Um and the problem I think to the extent there is a problem is corroboration. It is corroboration is obviously uh credibility is central here. That's the defense. She's lying or they're lying.

Uh and um how does what's your response to? Is corroboration uh um relevant is cumulative an argument that this is cumulative relevant to corroboration? That's what I'm I'm sorry to not be as articulate as I should have been. I I suppose it it could be

and perhaps I come with certainly um I could have just stayed with this was not improper and even if it was there were limiting instructions very wellcraftrafted limiting instructions here um both immediately following the testimony and during uh final

instructions um again very very thoughtful they were crafted by um I would suggest the the assistant district attorney. Um but it was also in agreement with with defense council.

Um again, this was a very very well-tried case by both parties. Um the trauma imposed on the three child victims incalcul incalculable. the the carnage that this defendant wreaked on their lives. Com would ask that you affirm the judgments of conviction and

the 32 of the 33 cases. Just one housekeeping matter on the the indictment for the attempted assault and battery. There's no overt act and you concede properly that that it doesn't allege a crime. Does it do we need to

send it back for resentencing or is that a concurrent sentence? Well, it was a two and a half years to the house of correction. defendant was sentenced on 10 counts of life with the possibility of parole at 20 years. I

would suggest that two and a half years concurrent to the house of correction, but he has another house of correction sentence. Right.

Yes, that's correct. On the assault and battery charge. Yes, your honor. Thank you. Unless the court has any further comments. Thank you. Thank you so much.

Our next case, excuse me, is 25p 1216 Comwalth versus Martinez. Mr. Sullivan. Good morning, your honors. May I proceed?

Yes. Uh, may it please the court. Uh, I'm Ryan Sullivan. I represent Mr. Martinez. I I want to start by saying that the these three issues are all intertwined as they go to the uh what I would say is the sole contested issue in

this case, which is the intent and knowledge of Mr. Martinez as it related to the assault and battery with a dangerous weapon. Um, starting first with the um the denials that were admitted, I I think it's clear error

here. And one of the reasons I say that it's clear error is that the defense in lemon was arguing that the uh the denial should not be admitted because of the concerns in Diaz. And the the judge's argument in admitting these ev um or his

reasoning in admitting the denials was the exact issue that Diaz uh prohibits that it eviscerates the rule that um regarding the presumption of innocence.

If a defendant has an accusatory statement, he denies it and that is used against him because the government presumes that in in Diaz, was he accused of committing the crime and he denied that?

So that is an excellent point that Ada Walsh brings up in her brief that um there is a distinction between Diaz and Rivera um in how the statements were admitted to them. I think the reason that the government doesn't win on that

point though is that Rivera had a different standard of review where here this was a preserved error and it's the exact same issue and so I I don't think the court but we were reviewing for an abuse of

discretion. Yes. The but what I would say is that the reason it's abuse of discretion is because this is the this is the prohibited issue. You can't say, "Were you at the location?" I don't know what you're talking about.

We're saying you were at the location. That's saying you can admit this because the trial judge made an argument that he did what he's accused of. He was at the crime scene. And it just that circular logic is why Diaz says you you can't

have these statements. Wait, can you back up? So in Wulmarmac Andas there's the rule requires an accusatory statement and you're are you claiming that there was an accusatory statement?

I've got I've got the transcript right here. You you give it to us in your brief. I if you're saying well are you saying there's an accusatory statement?

I I think it's an accusatory statement because it's as which question just quote it about wanting to be at the location. So So that's the problem I have is is that I this is more like a um Rhode Island

versus in you know issue. It's it's the functional equivalent of an equ of a accusatory statement saying were you the person at the crime scene. He denies it.

Now I think everyone here uh considering this knows that he was lying when he denied it. But to admit that says that if you are asserting your right to be presumed innocent that that can be used against you as consciousness of guilt.

It that is not the rule and it should never be the rule. Uh there was plenty of other consciousness and guilt evidence that was properly admitted.

Jumping out the window and running away when the police were going to arrest Miss Drew. That's a really good point that the government was able to elicit.

Saying, "No, I am objecting to you accusing me of committing this crime when we're talking during the interrogation is not a factor that should be used against." Does it make a difference that he admitted in his closing and elsewhere

that he was at the location? So, right from the get-go, uh, we know it's a false statement.

Well, but but the problem is is that it's we know it's a false statement because trial council faced with an overwhelming amount of evidence that he was at the scene embraced it. Um, but it I still don't mean I still don't believe that it

can be uh that it can be overlooked that a denial of being present at the scene cannot be used as evidence. And one of the issues that I have is although I agree, although I wish I didn't have to

agree that the jury is presumed to follow the limiting instructions in this case, it's like trying to unring a bell by ringing it again and then instructing the jury, don't listen to the reverberations. And so when they're told, you can consider Mr. Martinez

lying about whether he was there as evidence of his consciousness of guilt. It is incredibly prejuditial here because Mr. Martinez is saying in his trial strategy. I was there, but I was I didn't know that it was police officers

who were attacking me and and and jumping me. And so if the more instances where the jury heard he can this can be considered as consciousness of guilt evidence, it goes directly to his his um but it was of his own making though.

I'm sorry, your honor. it was of his own making. When the police spoke to him, he was not obligated to speak to them. But once he does and lies to them, then it uh it evinces consciousness of guilt. So

if he were to build so I would say if he's lying to them in the terms of building his own narrative and and those are great examples of where I do think a those well I think he built the narrative

later at at that point in time he's trying to exculpate himself. Correct. And that decision to try to exclate himself should not be used against him in his trial.

Can I can I ask is there do you have a case in which there's not an accusatory statement? Your your definition here of we all know that this was an accusatory statement in WAC it was absolutely an accusatory statement. You did the crime

and I don't actually know if in Diaz it was but um in response to police accusations is the quote that you've given us. Do you have a case where this kind of I don't actually think it's an accus you haven't convinced me that this

is an accus accusation. Um do you have a case? I would I would like to say that Eduardo Martinez would be a great case for future defend.

Um I do not have a case under these specific issues. Um and I agree that it is a it is a narrow um it's a narrow issue and if it was the only ground that I had and there weren't

these other issues. I understand the evidentary difference though because the the denial of the accusation of the crime is hearsay whereas the lie to the police is not coming in for the truth of the matter asserted. It's coming in to

show consciousness of guilt but and and because it's coming in for a consciousness of guilt purpose and I absolutely agree with your honor but it doesn't take away whether or not its probitative value is outweighed by its prejuditial effect. Its prejudice effect

is saying by saying I'm not agreeing with you that I committed the crime. Was that raised in front of the judge?

I I think by the trial council arguing Diaz and Wulmarmac um it it precisely was uh the judge disagreed saying, you know, the judge mentioned he's had many different cases where the denials have been inadmissible and then ruled the

opposite way in in this case. And and I think this was a a central issue here.

And again, there was other evidence of consciousness of guilt. And so I I don't see how the probative value here was was outweighed. Um, and I think this dovetales into the same reason that I think severance should have been um

ordered in this case because although I agree again with Miss Walsh, it's difficult having such a worthy adversary. um that from a uh 30,000 foot view, the two embraced the self-defense argument together, but Miss Drew's argument was I should be exculpated

because he is the person who was the bad actor. That is directly the issue about having antagonistic defenses. Mr.

Martinez did not have an antagonistic defense towards Miss, but she absolutely had an an antagon defense attorney didn't put that spin on it in closing though, did he? Or she? Right.

Um I I do believe that attorney Christian's saying, you know, that this is I I agree with his colloquial I don't have much to No, we we agree with what what the defendant argued in closing.

I'm sorry. We we agree with what the defendant argued in closing. I don't have much to add to that.

But then he juxtaposes Mr. Martinez's um consciousness of guilt evidence with his what he would characterize as Miss Drew's um consciousness of innocence.

And and that's the issue. My client didn't run. My client called the police. My client was cooperative. We know that Mr. Martinez was none of those three things because he's saying that when the issue here is intent, he's saying my

client did not have the intent. I agree with what council's saying is that this was an argument of self-defense. I'm sorry, I'm using too many pronouns. Uh, trial council for Miss Drew agreed with trial counsel for Mr. Martinez that yes,

this is self-defense and then said on top of that, here's the reasons why Mr.

Martinez is the bad actor. And then when we get the uh does does does council argue that as opposed to just talking about Drew? I I think his argument is precise. So in closing, he doesn't point the finger

to Mr. Martinez. I I agree with the court. His points necessarily juxtapose Mr. Martinez in that bad light. And I think his cross-examination questions, you weren't looking for Felicia. You didn't have Felicia in the reports. You didn't know Felicia. Um juxtaposes that

the police, she made the phone call, right, to report the car stolen. Yes. But she never appears in person to make the the complaint that as she was instructed.

Correct. I I'm not sure why the Commonwealth didn't argue that that phone call was an exculpatory intent to uh or an attempt to or her not reporting it in person would indicate that she's has consciousness of guilt.

Yes. I I don't know why that point wasn't fleshed out more, but um I think it's because this was about Mr. Martinez much more than Miss Drew. She was she was a sideeshow in Mr. Martinez's trial, which is why I don't think she should

have been there because the these points saying, "Look at my consciousness of innocence negatively impacts Mr.

Martinez's trial defense." I'm struggling with that because I think that she was her lawyer's point was, as you said, intent. When when I see the police coming to me afterwards, when I know it's police, then I behave differently. So, you can contrast that

to how I behaved. I clearly understood these people to be or at least it's a reasonable doubt whether I understood these people to be police. That's the point. But that's not blaming him.

That's here's why I'm innocent. That's not mutually inconsistent with he's guilty. And also there's your bigger problem is there's tons of evidence that they're guilty as joint venturers. That the the direct testimony that she's turning the key in the ignition and

putting it into drive while he's putting the gas pedal down. It's if there's evidence of joint venture then you then it's not uh a basis for severance.

So I I would say that the issue here is that there was more than just those arguments regarding her intent. His cross-examination, I believe it was of Detective Oler about the physical impossibility of uh shifting the car into drive without pressing the brake

and that Mr. Martinez would have had to necessarily press the brake in order to cause the car to shift. Therefore, he is the person um you know, essentially her point is we had to act in concert together. She's saying he he knew, you

know, he was part of this. Um I I just see this, you know, it sounds like the court doesn't, but I just see this very clearly as um you know, that they were she was pointing the finger at him. That

that was her her path to a quiddle was she drew his his codefendant was pointing the finger at him. That's your point.

If if if rule 9D required the defenses to be identical uh or or severed, I could understand what you're saying, but it doesn't say that they have to be antagonistic, mutually exclusive, and saying, "We both are arguing self-defense. We both didn't believe

they were the police. We both thought we're we're in trouble as drug dealers in this violent high crime neighborhood.

Uh and by the way, I'm I was I cooperated. That's not mutually exclusive as far as I'm concerned.

I I think her saying and that's why I say that I don't believe Mr. Martinez was antagonistic towards her. But I think her path to victory has to say I I did not have the intent to do this

and and that's I think but she doesn't do that. I I would say she very subtly does which is why the the two of them should have been separate. I Is there a transcript site where you can uh give us evidence of this? I I think

it's the, as I raise in my brief, the um the juxtaposition that attorney Christian uh artfully makes in his closing is is what is that that subtle nod, but but I agree with you that it's not um it's not as stark as I would

prefer it to be. Um the lastly, I I just want to point out um and it seems like I'm giving her too much praise. Um I I also agree with ADA Walsh that in unfortunately in using the fentanol sale

um that the court may determine that um if any error in its admission, the adoption of that as one of the uh basises for asking for self-defense may not require that being uh an error that would require reversal. Um,

the reason I bring that out is one, I I think that the strategic decision to do that was after the judge had already issued the uh order that the warrant would be admitted and so they the defense has to explain away something

other than the warrant. The warrant was objected to, but the drug ruse Yes. bit was not.

I'm not sure why. And being on direct appeal and they used it. Yes. And they they used it and they got a self-defense defense instruction. But I do think with the admission of the u ruse, which by the way, not to cut too

fine a point, but I mean I think fentanyl could have been taken out of it. I think you know that we knew that there was a drug transaction or something that's take place that could have lessened the the prejudice, but in

any event, it it was used um strengthens my argument that the warrant was improperly issued. Uh especially I think uh Leone is my best case here where the warrant wasn't communicated. The existence of the warrant wasn't communicated to Mr. Martin.

Isn't it an element of resisting arrest that the officer had to be acting under the color of official authority?

And so yes, but because there it wasn't communicated to Mr. Martinez. Well, that's a different element whether he had knowledge that he was being arrested. So just because they didn't say we have a warrant, we're the police, doesn't take away the need for the

Commonwealth to prove that they were acting under color of official authority. And how else did they do that except saying there's a warrant? Well, they could say that we they had uh probable cause to believe that he had

committed conspiracy to violate the drug laws by engaging in this fentanyl ruse sale and therefore that was a different basis in which to do so. It's that the the warrant itself paints So you're saying that the warrant evidence didn't need to come in because

the drug ruse evidence was there anyway. Correct. Well, that seems like I mean I've heard of arguing in the alternative, but uh you can't win on both of those. So, so, and that's precisely my point in bringing it up that I I agree. I I I I

wish I could win and I'm happy to win on both of them, but um if the court is going to find that one of them is error, I think it's the warrant. You Thank you.

Thank you, Miss Walsh. Good morning. May I please the court? Emily Walsh for the Commonwealth.

Justice Hagen properly denied the motion to sever where both defendants raised the same defense. Both defendant, the defendant and Miss Drew presented the defense that they believed they were being attacked and did not realize the individuals coming towards them were

police officers. The defendant in through council claimed that he was terrified and did not realize that the officers were police and that he was running for his life. Ms. Drew via counsel argued that she did not know these were police officers that they

encountered at the car wash that night. And Ms. Drew's council addressed the call to the police department as that of a frightened person who's still trying to process, who's trying to figure out who those men at the car wash were.

That's what the call is. Further, as discussed, uh, Miss Drew's council adopted the defendant's arguments.

Rather than incriminating the defendant, Ms. Drew's council stated after the defendant's closing, I don't have a whole lot I need to add to that very comprehensive presentation by defense council. Further, Drew's council, Miss Drews Council adopted the direct

directed verdicts made by the defendants council, and Miss Drews council did not cross-examine most of the witnesses.

There was no error in denying the motion to sever. There was also no error in admission of evidence related to the defendant's arrest warrant or evidence describing the drug the ruse drug transaction.

Regarding the arrest warrant as discussed uh the defendant was charged with resisting arrest and the existence of arrest an arrest warrant is therefore highly relevant to that element of proof. No details about the outstanding warrant were admitted and there was a

limiting instruction regarding the arrest warrant which was given contemporaneously and again in final con instructions.

That's true. With regard to the drug ruse, it was not objected to, but rather was relied on heavily during the defense case to argue that the high crime nature of the drug business and of drug transactions meant that the defendant

was acting in reasonable self-defense. What about the the the um the denial of him being at the car wash? Uh the denial of him being at the car wash was not a direct accusation as was the case in WAC

where the interviewer said you robbed the place, you stabbed the clerk or in Rivera where the interviewer said uh that the to the defendant to the interview subject you have been identified as killing this kid. In contrast here he is asked where he was

and not only did he that was Diaz he says uh killing this kid the quote you just gave that was from Diaz uh from Rivera oh sorry Rivera uh it said you have been identified as killing this kid. So that

is a direct accusation in Diaz. Um the SJC at least implied that a couple of um comments or accusations were um improperly admitted. One of them was that the defendant was not in Lel on the date of the incident and that he had

not been driving a Mitsubishi. So I don't have the different from I I think that there are two two reasons why why that is distinguishable. Well, one Diaz was overruled in part by WAC.

Uh, so I I don't have the I don't have the case in front of me because it was overruled. I understand that there are legal points that stand, but in this case, not only did he deny it, he gave a

false narrative. He said he was at home. So, it was not a direct accusation and that my my brother's argument that it is the functional equivalent, your your presence there is not consistent with Rivera and WAC. Instead of being faced

with a straight accusation and a straight denial, he was asked a question and he gave a misleading or false answer. He did not just say, "I wasn't there." He said, "I was at home." I believe he also said he had a barbecue

that night. Said, "Were you at the car wash?" And he said, "No, then that would not have been admissible." I think it would be closer, but I I am not saying I I I I think it would be closer. It's still not

a direct accusation, but it's closer. Whereas here, not only was it not a direct accusation, he didn't just say no, he gave false information and it is well established that defendants statements are admissible against him.

Um, what aspect of WAC would suggest that the treatment of these accusations in Diaz uh as potentially inadmissible uh accusations is no longer good law.

Again, I'm sorry I don't have Diaz in front of me to give you a more complete answer, but uh the I I believe it was the standard of review that was actually overruled from Diaz in WAC, but the I do

my memory of Diaz was was that it wasn't there was no further statements that it wasn't these misleading incorrect statements. He said he gave a false explanation of his whereabouts on that night. He said that he was home, which

is outside the realm of the hearsay rule. That a a direct accusation and a denial. This is not a direct accusation and a denial. It's a question about a whereabouts and a false answer.

What about the question to the defendant here? Did you do you have any idea how the Lincoln got to the car wash?

I think that's even farther from a direct accusation. That's a question about knowledge and he said he didn't know. That's not a direct accusation. I think that is outside the scope of the rule and goes towards just defendants

answers are statements by the defendants are admissible and the that fact that in Diaz the um uh denial that the defendant was driving a Mitsubishi is different from the defendant didn't know how I think it's also more broad where how

did they get there is different than were you driving it it's not even it it was the the question was he was asked how the car might have gotten to the car wash that night. It's not an accusation.

It's not even a yes or no question. He was he was asked about the car and its whereabouts and he denied knowledge.

Are there any further questions about the admissions of the defendant? I'm struggling to articulate it clearly, but the sequence the defense again embraced uh the ultimate position that he was at the car wash, which then made these denials consciousness of guilt evidence.

And your opponent says, well, he was sort of forced to do that because of this conversation. I'm wondering sequence-wise if if it ma if the sequence matters at trial. In other words, if uh obviously this officer testified about this before the defense

proceeded in opening statement, did the defense and I don't know if this matters, but if the def did the defense mention this defense in opening statements?

Um the the defendant at opening did not Yes, he did not. He essentially conceded he was there, but it was resolved at a motion and lemonade an emotion to lemon motion and lemonade hearing on May 18th, 2023. This was addressed. So the C

council knew that. Okay. So it was clear at that point. Okay. Right. Thank you. That's that's candid.

And the judge at the motion in lemonade hearing said this is not a straight denial. These are statements that go to consciousness of guilt.

Okay. So theoretically, all right. Thank you for acknowledging that. So I guess theoretically, right, that's the right question. Maybe and I bet your opponent briefed it this way. But but the motion in lemon once that ruling has been made,

defense council has essentially has to make a choice. And the choice he or she made was okay. Well, we're going to embrace this. But theoretically, if that emotion eliminated ruling was error, then uh and we reject your view that

that these are not sufficiently accusatory, then that could be the the embracing of it is not relevant anymore.

The the def the defendant certainly made strategic decisions based on the decision in the motion.

Okay. But I Yeah. Thank you. Thank you. Are there any further questions? None. Thank you. Thank you both.

Thank you. Our next case is 25p 818 Edward McCarthy versus Trenton Andrews. splitting your time.

Thank you, Mr. Dunan. Good morning, your honors. Well, good afternoon, I'm quite sure. Good morning. Uh, may it please the court. Robert Dunan on behalf of the plaint of appellant Edward McCarthy. I would like to focus on three issues

central to the rule 12c dismissal. First, the dismissal depended upon resolving disputed factual issues against the plaintiff at the pleading stage. Second, the amended complaint expressly disputed scope employment and pleaded alternative scope theories.

Third, the amended complaint alleged separate negligent police cruiser operation claim, not merely a roadway conditions, so to speak, claim. Uh, your honor, I I would submit that the findings by the court dispute they decided disputed factual inferences and disputed facts improperly

pursuant to 12C. The amended complaint alleged a lot of facts, including that officer Wooki was operating a vehicle at approximately 41 miles per hour in a 30 mph zone.

I would state that that is not insignificant in the sense that it equates it wasn't just any vehicle. It was his police cruiser.

Excuse me. It was his police cruiser. It was that's how it's pled. It was he was driving a police cruiser. No doubt about that. He was driving it. But what I was saying is he was driving at 41 in a 30 m uh 30 mph zone which

equates out to approximately 90 in a 65 mph zone. The Doyle case uh that both parties have cited I think says the Tor claims act applies to negligence, gross negligence and recklessness. So regardless of how fast he was driving

unless you're alleging an intentional tort, which you're not, then if he was within the scope, he he's protected and and it's the town that's liable.

I I agree with you 100%. So why does how fast he's driving really make a difference here for us? I I would say that it's one of the factors which comes into whether or not he was within the scope of his employment. I'm not

saying he was or he wasn't working. Council has repeatedly indicated that he was working and I acknowledge that you admitted at the hearing that he was on duty.

Yes. Based upon I acknowledge what he represented. Uh I have not had a chance.

Are you not bound by that? I think an assertion of counsel at the hearing does not bind you at uh sometimes it's called a judicial admission.

Well, I I I would respectfully submit that what is said in the hearing is an assertion. It is really it is what is said in the complaint itself. The facts alleged in the complaint mean you don't get to hold your hand

your fingers behind your back, right? No, but I I understand what you're saying. The court is is entitled to rely on representations by council who are bound by ethical principles to be cander cander canded to a tribunal.

I I hear what you're saying, your honor, and I I understand that. But what it comes down to is whether he was working is not relevant. Working does not equal scope of employment. the fact that he was working like the Berry case

explicitly said, uh, you can have torches acts within the scope and torsious acts outside the scope.

But you're the allegation, the complaint is that he's driving his police cruiser and you say excessively so, which contributed to the accident.

Correct. And and and he's on duty in a police cruiser. It's not like he's in in Chattam Harbor shooting seals with a shotgun while he's on duty.

No, your honor, but I mean the fact of the matter is pursuant to 897B, police officers have a duty to drive within the speed limit and and I would submit that this was excessive. It's not just that.

This goes to what Justice Sachs pointed out that that doesn't take him outside the scope of the tor. But I think but I think I think if you look at everything including the operational justification his his uh the fact that he knew that

that intersection was extremely dangerous. He knew there was no stop sign. He was on the road for approximately 500 ft. He had accelerated up to 41 miles per hour in a Do you have a case that establishes? So

all of that goes to negligence, gross negligence, lack of his duty of breach of duty of care. But but that's not the question of scope. The question of scope, it sounds like if we're if you're required to Justice me's point, if

you're required to concede, because you did that he was on duty. Is there a case that says uh uh what you're arguing that um on duty outside the scope?

Yes. The Berry case specifically has that. The Clickner case specifically has that. Okay. Uh those two cases indicate that both were working and what they were doing at the time was outside the scope and that's what the court uh ruled.

Is is scope something that needs to be affirmatively pled or is it a defense?

Uh it was affirmatively pled in this case, the amended complaint. No, but I mean just saying he was out he was uh outside the scope. I I wouldn't say that's well pled. That's just a conclusion, right?

Is it is the burden on the plaintiff to establish that a a defendant in this situation, a public employee is acting outside the scope or is it the burden on the employee to uh establish now I was in within the scope. So, I'm immune and

my employer is liable. Uh, I I say it's on behalf of the plaintiff to prove that he was either working within the scope or outside the scope and it's on the defense side. One side being the on behalf of the attorney

on behalf of the police officers who argued that he was within the scope and the town to say he was not within the scope. And that's what we have defense council arguing for both having different uh arguments.

I I I in the complaint I indicated in addition to 41 milesPH, we alleged that he knew the intersection was dangerous.

Visibility was obstructed. There was no stop sign. He break 4 seconds before impact. I also specifically stated in the amended complaint he was not following any car or otherwise performing any duty which would have required him to speed in that way. I

further alleged he misused the police cruiser and lawful speeding, egregious uh failure to slow down and conduct inconsistent with his duties. Uh I would uh respectfully submit that all those uh facts certainly leave a question where the factf finder could determine that he

was acting outside the scope of his employment. Okay. Thank you Mr. Brosman. Good morning. May please accord John Brosman on behalf of Trenton Andrews and Stephen Andrews. Um, I'd like to start with the court's dismissal of the uh respond yet superior claim count four

because what what the the motion judge ignored in this case is that in the amended complaint the plaintiff asserted two separate claims against the town.

One was based under, you know, what fell under what she concluded fell under the road defect statute and the other one was just a straight mass tors claim act under general law chapter 258 section two.

Account four is the respondent at superior. Account 7 is the road defect act. Right.

Exactly. Exactly. So I don't know how the judge came to the conclusion that the Ronda Spot superior uh count was broomed out and in fact there was a lot of inconsistencies in a rationale and I I think it was a one-s

sentence statement and and for the reasons cited above the road defect bars that respond yet superior count. Um we cited two the closest cases we found were two superior court cases. One was decided by Judge Dorfer, the debadetto

case. The other one was was decided by Justice Curran uh in Santo. And at page 32 of my brief, we discuss the Deb Benadetto case.

And in there, they came up with a rule that the cases decided under these road defect statutes. There's there's both a state and a and a and a municipality.

one um have involved im immobile objects that render the public way unsafe or unc inconvenient for ordinary travel.

On top of that, the court said there's no indication in the in the road defect statute that the legislator intended to deprive a plainif of his or her right of action against a Commonwealth employee who negligently operates a motor vehicle

on a state highway and thereby causes injury. The council for the town and officer Wnookki has not cited any case law to support its position in Stewart versus Brooklyn is the SJC case. It it it makes clear that a police officer has a duty

to operate a vehicle so as not to endanger other motorists. I think the gist of the plaintiff's claims against uh the town and officer Znooki is that he was operating the uh cruiser in a negligent manner.

What's your view of who has the uh pleading burden on issues of immunity? Is it up to the plaintiff to plead that the um uh public employee is um outside of the scope or is it up to the public

employee to plead that the employee was within the scope and therefore the public employer is liable?

It's it's it's an affirmative defense. It's an immunity. So we cited some case law in the brief um on that point.

Um, it'd be like it's like the 10J. They have another argument on 10J. So, I I' I'd say it's similar to that that they carry they carry the ball.

I saw the uh citations to the Pinshaw and the Barry cases, but I couldn't find anything in those cases that um spoke to who had the burden or whether it was an affirmative defense.

Yeah, I didn't I didn't find that. I think in in the reply brief that I cited, your honor, I think I may have cited some cases.

Yeah. On page seven of my reply brief, uh, it's an affirmative defense. I cited um Lopes versus Riando 177F sub3rd 634 2016 case quoting a superior court case versus Hardy. Um and it's and then I have a quote in there from Tamacio

defendant public employees board the underlying burden of proof on the issue of entitlement to immunity of a public employee.

So, but um yeah, so I think I think there was clear error in dismissing count four. And if I like to go back to the the claim against officer Wooki, I think you raised a question about Doyle, Justice Sachs, but I I think you got to

look at Barry because Barry's the SJC and that's the controlling case. And in that case, they said unsafe driving that has no no purpose. It doesn't it's not motivated to serve the employer's purpose.

That is not protected. That's not within the scope. So you get into the continuum.

They're focusing on what happened there where the guy was doing donuts and slid into the picnic table and injured another officer at the shooting range.

But you get into the continuum with what's what's gross neg negligence which gets back to my principal point is that the motion judge jumped the gun under Pinshaw. This is an issue. It's an issue of fact. There's the three-prong test of

the scope of the employment is is something that that's you know has to be decided at the earliest I would say the summary judgement stage. There's the Pedifford case uh Justice Englander ruled on recently. That was the Dunkin

Donuts employee that uh insulted a uh restaurant patron and hurled a racial racial epitat at them. He specifically stated you cannot decide what the motivation of this person was at the pleading stage. So I I think there there's a long line of cases. I've

cited several of them in my brief, but I think Pinshaw really pins that down. Um, and on the the affirmative defense on 10J, um, originally caused simply means materially contributed to the condition that caused the harm. It's not the sole

cause. It has to be an affirmative act though, not just the failure. But this is a threec car accident. First impact is officer Wiznooki striking.

What do you what do you allege caused the accident? Officers Wasnooki was speeding. If he if he was not exceeding the speed limit, he didn't break till 04 seconds before he struck uh Mr. Andrews, the vehicle Mr.

Andrews was operating. So the two of them that that created a force, a very strong delta V force that pushed both vehicles into the uh and that was caused by the defective intersection.

It had nothing to do with the defective intersection because officer Wooki had nothing to do with it. He's he's a police officer. He's in his his cruiser.

I thought there's an allegation that the failure to to There's two separate theories, excuse me, to to install the the reinstall the stop sign and and cut back on the foliage at the intersection and the fence.

Yeah. There there's in the amended in the amended complaint, there's two separate theories. One is that there's the uh defect, lack of stop sign, excess foliage, blocking of sight lines. And secondarily, it's the conduct, the independent and distinct conduct of

officer Wiznookski in driving at an excessive rate, failing to break and striking. So, do you have anything else? Yeah. Okay. Thank you.

Thank you very much for Mr. Fenob. Good morning, your honors. Cole Farenov for the town of Chadam and Officer Joshua Wisnooki.

Justice Saxs, I may start by addressing your question about the pleading standard for immunities in Doyle. This court said that it was the plaintiff's burden to plead facts sufficient to establish that the officers were Does that make sense to you?

Yes, your honor, it does. Typic typically with immunities once they are raised it becomes the plaintiff's burden to rebut those immunities. That is because they're not immunities from liability. They're immunities from suit.

So how does who has more access to information about whether officer uh Wnooki was in the scope? Is that something that the plaintiff has to uh allege facts that affirmatively disprove?

Yes, your honor. The plaintiff's burden is to plead facts sufficient to plausibly suggest that the officer was acting outside of the How can he know what the officer is doing in his cruiser, whether he's on duty, whether he was responding to an

emergency call somewhere? Isn't that much more uh information in the possession of the officer himself and the town? Well, your honor, certainly the plaintiff can make a public records request prior to filing a complaint to establish whether the officer was in

fact acting within the scope of SMC has to do some discovery in order to figure out who to sue.

Not necessarily, your honor. Here, officer Wnooki was in his uniform in a police cruiser on a town-owned roadway.

Do we where do we hear that he's in his uniform? Your honor, I apologize if that was not in the record. However, uh as Justice me noted at the arguments on the motion for judgment on the pleadings, council for

the plaintiff acknowledged that officer Wisnooki was in fact on duty. How do you distinguish this from Barry? I went back uh thanks to your opponent and and read their brief and I was reminded that that is uh a police officer just like this

case on a paid lunch break which I guess makes it clear that he's on duty uh and broadly uh driving alleged to be driving very recklessly. Nothing in the dangerous game of driving too fast toward the picnic table behind the

storage container where officers were present slamming on his brakes um further the interest of the town. SJC holds uh as alleged he's outside the scope even though he's on d he's on his paid lunch break. So it sounds like

they're saying that's outside the scope even though he's on duty. Well your honor in Barry absolutely no inference could be drawn that the officer's conduct was in furtherance or I'm sorry was motivated by any goal to further his employ.

But your opponent's point is driving too fast. It seems to me that there's a spectrum here. I I take your point that okay in this case the facts alleged it's much it seems much less negligent than the facts alleged in Barry. Um but it

arguably could be and isn't so isn't that a question of fact to be resolved at a later stage? No, your honor because on the facts pled by the plaintiff in this case this court may conclude that officer Wnooki was acting within the

scope of his employment. Why? To Justice Me's point earlier, it's not as if uh the plaintiff pled that officer Wasnki was shooting seals in the harbor conduct that would be sure that would be really really negligent and he also wasn't doing

donuts in near the picnic table which would be worse. But is there a case that says speeding is not negligent enough?

Well, your honor, we cite to uh a first circuit case McIntyre in our brief that stands for the proposition that an FBI informant who intentionally I'm sorry, an FBI agent who leaked information on a confidential informant uh resulting in

harm to the confidential informant did not fall outside the scope of employment. So there, even where you have a violation of the law, the agent was still within the scope of his employment.

Okay. But that doesn't seem very analogous. Barry. Is there a violation of the law in Barry? He's just driving.

I mean, alleged the officer is alleged to be driving grossly negligently, I guess. But I don't think he's being alleged to The key is not whether he committed a crime or didn't commit a crime. In other words, McIntyre doesn't

seem analogous. Barry seems really analogous, but just a little bit more negligent. Well, your honor, uh Barry goes far beyond the bounds of the facts in this case. The officer there was on a uh a break from training, was doing donuts in

the parking lot. Wait, wait, wait. Break from training. Is he on duty? It sounds like he's on duty.

Your honor, he was on a paid break from a training. What does that mean? He's on a paid break. I don't know what that means.

He's on duty. I think he's getting paid, so I think he's on duty. Well, your honor, at the time that he's on a break, I don't think his conduct was in furtherance of his employer's interests.

Okay. But he's on duty and he's behaving he's alleged to behaving negligently. So, it sounds like that's those two things are the same as this case. on duty as far as we know and uh speeding which seems to be negligent. Is there

I'm I'm struggling to understand why those are different. Your honor and Barry, the officer went well beyond the bounds of negligence. He was doing donuts in a gravel parking lot. He came to a stop and then he accelerated directly at the plaintiff

and failed to stop. Okay. He was in essence driving a car intentionally directly at the plaintiff in that case.

Okay. Thank you. Thank you, your honor. Could you address how the failure of the road defect claim uh can insulate the town from liability for the officer's alleg allegedly negligent uh driving under the mass to claims act?

Well, Justice Saxs ultimately at the end of the day uh the plaintiff is the master of his own complaint. As this complaint is pled, the cause of the collision between the three parties was the absence of a stop sign at the

intersection and the overgrown foliage. He doesn't plead that that's the only cause, does he?

No, your honor, but there's no He pleads that the negligence of the officer uh is is one of the causes.

He he does make that conclusory allegation, your honor. However, there's no allegation anywhere in the complaint that this accident would have occurred if there had been a stop sign and the foliage had been cut. In fact, the complaint reads to the contrary. The

plaintiff, pardon me, honor. Go ahead. The plaintiff acknowledges that this accident would not have occurred if there was a stop sign or the foliage had been cut back.

Where does the plaintiff do that? And is that pleading in the alternative? I mean, if the plaintiff asserts that the negligence of the officer was one of the causes, then why doesn't that claim survive even if the um cause attributed

to the lack of stop sign and fairly to trim branches uh falls out of the case because there was no notice?

Well, your honor, if there was no roadway defect claim and there had been a stop sign, uh no overgrown foliage, and this was a chapter 258 case, the town would still be immune under section 10J.

Okay. But you're shifting to a different issue now. What I'm focused on is why the um failure of the road defect claim should negate the um the town's liability under the tort claims act. And you're you're well go ahead.

Thank you, honor. Uh in record appendix page 318, the first amended complaint, a quote, uh if a stop sign had been erected, Andrews would have stopped preventing the August 11th, 2020 accident. There are similar allegations in the complaint about the overgrown

foliage. So here ultimately plaintiff has pled that this accident was caused by the absence of a stop sign and the alleged failure of the town to uh cut overgrown foliage as well as uh enforce a mandate that but that's a a part of the claim against

the Mlands for uh I guess not maintaining their um well I don't know why it's a part of the claim against the Mlands because it's about erecting a stop sign which they don't have the authority authority to do. But I don't

understand why the plaintiff can't plead in the alternative here. If if there had been a stop sign, this wouldn't have happened. If the officer hadn't been driving negligently, this wouldn't have happened.

Your honor, because ultimately that's nothing more than artful pleading. At the heart of this case, the plaintiff alleges that if there had been a stop sign or the foliage had been cut back, there would not have been an accident.

Well, so but at RA 314 paragraph 48, as a direct and and this is count four, the one that we're actually talking about, as a direct and proximate result of the negligence and carelessness of the town's agent and employee Wiznooki, the

plaintiff was caused to sustain severe injuries. In other words, it's alleged properly there and it doesn't say anything about the Why isn't that enough?

Your honor, that's not enough because elsewhere in the complaint, the plaintiff makes clear that this all stems from or he believes that this all stems from the missing stop sign.

So with regard to 10J, what is the um how does officer Wnooki's driving um merely failed to prevent or diminish the consequences of the accident versus being one of the original causes and making it worse by pushing the Andrew's

car, I guess, over into the lane where the plaintiff was oncoming. Well, Justice Saxs, uh, Officer Wnooki is not the original cause because this complaint lacks any allegation that this accident would not have happened, uh, but for the conduct of the Andrews

defendant. In other words, it was not officer Wnook's conduct that caused this accident. It was the Andrews defendants uh, I'm sorry, Mr. Andrews failure to stop. made it even if he didn't um cause it in the sense that it might have

happened um uh that the stop sign was one of the original causes. He certainly made it worse. At least it's alleged that he made it worse because he was driving so fast and he pushed the Andrews vehicle into the oncoming lane. Well, your

honor, the SJC has cautioned against reading original cause to uh to be so broad as to encompass anything that may have potentially caused the accident or the harm that the plaintiff complains of.

Isn't it's if it's sufficiently pled that it's a combination of two factors. uh Wiznooi speeding on a country lane and Andrews blowing through what he was an intersection with or without the stop sign where he should have stopped and

they both are behaving negligently and they in combination crash and uh cause the damages to McCarthy. Isn't that enough under 10J?

No, your honor. Officer was news conduct would need to materially contribute to the collision. It is not here. At the end of the day, in my mind, that hypothetical, they're both materially contributing. Just to be clear, to me, they're both materially

contributing allegedly based on the way it's pled um because one is pleading is going too fast. The other one is blowing through an intersection. They're both being negligent. And they and so isn't that aren't they both materially uh

contributing? No, your honor, I do not believe so. How come? Uh officer Wnooki had only point4 seconds to apply his brakes. Had he even been driving at 30 miles an hour and inference could be drawn that he still would have had a very short amount

of time. There was nothing he could do to avoid this collision. Oh okay. Okay.

Furthermore, to the extent that plaintiff's claim is premised on a roadway defect, chapter 84 is the exclusive remedy.

Plantiff cannot bring a separate claim under chapter 258 for negligence where his claim was originally caused uh by a roadway defect under chapter 84.

Do do you agree that if it was error to dismiss the plaintiff's claims against the officer in the town, it was also error to dismiss the cross claims by the Anders. So are they do they stand and fall together? Well, your honor, uh

although not raised in our papers, the town uh retains it sovereign immunity from claims of contribution because it is not contained in the definition of a person under the contribution statute. Were that not the case, yes, I would agree

that it would have been error to dismiss those claims. So, the Commonwealth or sorry, the the town can't be liable for contribution because it's not a person.

Yes, your honor. there any case law to back that up? Uh your honor, there is a plethora of case law addressing uh what is necessary to constitute a waiver of sovereign immunity.

That is an issue that we'd be happy to submit further briefing on if the court would if the court would like.

If there are no further questions, uh we will rest on our papers and ask that the support see none. Um, thank you all. Take our advice. We're going to take a short break.

Stand recess. What is the session? Please be seated. I get it. Yep. Our next case is 25p407, Department and Children and Families versus Mother. Mr. Rosenthal.

Good morning, your honors. May it please the court. Steve Rosenth Rosenthal representing the appellent mother. Uh we're asking that the court vacate the u lower court order granting the guardianship petition and remand the case for further proceedings.

DCF as the um petitioner in this case had the duty or the burden to prove that the grandmother who was proposed as the guardian that that appointment was in the child's best interests and had to prove that by clear and convincing

evidence. Do you agree that or what's your position on whether the mother is disputing her unfitness?

There's no question she did not she did not did not concede her unfitness. You may be able to interpret you may be able to interpret her statement that she wasn't seeking custody as being um as being an admission of unavailability.

But I would direct the court's attention to care and protection of Aaron uh an SJC case 443 mass 567 at 572 and 73. A parent stipulation that he or she is unavailable to parent a child is a valid

basis for a judgment because it is an admission of unfitness. However, the factual basis for the initial determination of unfitness should be appear somewhere in the record either in a colloquy or a writing signed by the parties. We don't have that in this

case. Found unfit after trial. I beg pardon. Wasn't she found unfit after trial? Well, first of all, wasn't asking her for her to be found unfit? But putting that aside for a second, the judge's findings were inadequate because

number one, there were three prongs to uh to the judge's decision that she based it on mother's prior history, meaning history before 2022 when child was removed from her custody and on and that was the first one. The second one

was mother's inability to engage in services with the child and three the status of the relationship between the child and the mother. And the problem there is the first prong was stale. The second prong and the third had to do

with the child's documented and repeated refusal to engage with the mother in services. Mother's not the one who abandoned the the child in this case.

the the child was afraid of the mother. Uh the child says well of course that's hearsay but the child says that he can testify about what his feelings are.

My point is, your honor, that the the child who at the time of trial was what, 16 years old, going on 17 was I'll blank it for a second.

I mean, she she plead guilty to assault and battery and a dangerous weapon on the child that caused an injury.

She pleaded she admitted to sufficient facts. Yes. She did not plead guilty and she wasn't convicted. She was the case was continued without a finding and uh she had probation assigned for a year but she completed probation after 8

months. The mother had made tremendous improvements in the passage of time from when the child was first removed from her custody until the time of trial.

Some three and a half years. And yes, the child who is now 17 or was going on 17 stated that he was afraid of mother, but that based on based on the mother's uh progress, which the judge conceded, judge pointed out she'd made

tremendous progress. He feared her because of the progress she had made. I beg Martin, he didn't fear her because of the progress she was making. He feared her because of their history, but there was no continuing vitality of

the type of parental deficiency that would justify. Aren't those credibility determinations? I would say in this case, as in any case where uh where a parent's parental rights are at stake, could be modified, could be removed or terminated.

the did she ever seek review and retrimination on on the finding of unfitness? Uh not until very recently, your honor.

And in that case, the the case was was assigned so far down the road that uh she realized that uh child would reach the age of majority before that case would ever be resolved. So, so even even if we were to assume that she's fit

to parent the child, the judge still had to look at the best interest of the child right?

Yes. And and mother was offering no alternative to the the the mother's the grandmother's nomination as guardian.

Well, your honor, I would I would uh I would direct your attention to uh adoption of DORA and which says that neither chapter 119 section 26B nor 210 section 3 require that any party have proposed or supported the judge's

ultimate custody order. Well, well, the jud the best interest um issue is committed to the sound discretion of the judge. Yes.

Yes. I agree. And and so the judge is is presented with a circumstance where the grandmother uh on on the record has has been an excellent caretaker and guardian of the child and mother nominates no one in the alternative and the judge has to

decide should we go with no one or the grandmother who's taking care of the child.

Well, first of all, you have to show how that is outside the range of reasonable um alternatives.

Well, to answer part of your qu your your statement there, the fact that the mother didn't set forth her own plan for the child doesn't mean that she was required to do so. And I refer you to adoption of

Zerena 93 Massipella Court 800 at 804. And the adoption of cadence doesn't say that mother is obligated to provide some alternative plan. The judge is saying I can't take the child back.

Then the judge has the authority to reject DCF's plan and propose her own plan, impose her own plan.

Right. But isn't that it's isn't it relevant to whether the judge abused his or her discretion that they that the judge is only given one option and that mother the only party opposing it is not oppo proposing anything else. Isn't that

relevant to the judges whether the judge abused the discretion? I wouldn't I would say it's relevant but it doesn't carry substantial weight because the judge has the authority to tailor the remedy as he or she sees fit.

So what would have been a remedy here that was more within the judge's discretion than uh appointing the grandmother guardian?

Well, okay. uh to reject the guardianship petition and ask DCF to continue services and to provide uh a different alternative than the grandmother.

There were statements that yes, grandmother had been compliant and and was involved in child's uh care.

However, the facts of the case, the chronology, which I outlined on page 10 of my brief, shows that she wasn't very successful at it and she at the time of trial, she wasn't proposing that.

So, so the child had been placed with a grandmother for a couple of years at the time the guardianship was adjudicated.

So, are you saying that the um uh if custody were left with DCF without the grandmother being appointed guardian, wouldn't DCF have continued the placement with the grandmother, or are you saying that would have been an abusive discussion? Well, one advantage

to continuing DCF custody would be that when the child turned 18, which will be in a few months now, uh DCF could continue to provide services to the child. Whereas if the guardianship is granted, DCF is pretty much out of the picture. And that option

and I directed to uh 110 CMR section 23. A child has to be in DCF custody in order to be eligible for additional services.

Was that to the judge? I beg pardon. Was that argued to the judge? No, it was not.

I'm trying to understand it. It sounds like you didn't quite answer Justice Sax's question, but is are would DCF in that situation keep the child with with the grandmother? Or if not, then I mean I I don't know DCF's business. They know

it better than I do. But finding a placement for like a foster placement for a 16-year-old kid seems like it's going to be really hard. Oh. Uh in other words, is that a practical option other is there a practical available option

other than the grandmother? Well, at the time of trial wasn't mother was not seeking custody. However, if the child remained in custody and if they can and if mother and the child continued to rehabilitate their relationship and there was some evidence

at the time of trial that that was occurring, then mother could have sought review and redetermination at that time.

But that this all seems really important to the or relevant to the judge's discretion. If all this maybe maybe this that it seems like the judge who knew a lot more about this than I do would recognize this is an impossible. There's

the the alternatives here. There are no good alternatives here. And how can that be an abuse of discretion?

It's an abuse of discretion because the grandmother had been delinquent in her care of this child, right? But let's just assume for the sake of argument that grandmother is the best option that let's accept that she's been less than optimal. Um, but there's

no better option. How is how is it an abuse of discretion to say we're going to stick with the best option, which by the way is what the kid wants. How is that how is that an abuse of discretion?

It's an abuse of discretion because grandmother's care had contributed to the child's brushes with the law, obtaining a tattoo, obtaining or or contracting a veneerial disease at age 13. All of this while in grandmother's care. And at the time of

trial, she would say, "Well, I know he skipped school because the school tells me, did she say one word about what she does to encourage him to go to school?" Yes, there was a finding of fact which said that yes, she works with DCF. There

was no, these were all conclusory statements. I pointed out findings of fact 1936 through 38. They were all drawn from the two exhibits that were presented in this entire trial. And my my position here, mother mother's position is that grandmother mother's

benign neglect had led the child to a position where he was in court in several criminal cases. Uh he uh I don't want to repeat myself. He you know he got a benign neglect caused harm to the child.

That's your argument. Yes. Let let's say the shoe was on the other foot and that all all of this stuff happened while the child was in mother's care. I suspect that DCF would say that she was uh neglectful and that

might be justifi just justify removing the child from her care at that point. I think grandmother did not do her job in this case. She wasn't appropriate. She was not uh acting in the child's best interest by letting him pretty much run

free range. So if there are no further questions then I will rest on my briefs.

Seeing none. Thank you Mr. Bis. May please the court. Jeremy Bis for the Department of Children and Families.

This is a case involving a troubled teenage child who had been physically assaulted by his mother and who despite being out of her care uh remained uh concerned and felt like he would not be safe around her. He was in the care of

his grandmother who was doing the best she could while helping this child deal with the trauma he had suffered and trying to find ways to address his concerning behaviors. She was working with the school and working with his

IEP. She was working with the department to ensure that services got in the home.

She was ensuring that he got to medical appointments that he needed to get to.

And um when he made poor decisions and ended up detained by DY, she coordinated with, you know, his release to get him back and get him on the right track.

When he contracted venerial diseases, she took him to the doctor and she got him uh some education on how not to do that. She told him not to get a tattoo.

He did that against her wish. I don't necessarily think that it is reasonable to consider a tattoo to be the sort of harm that leads to uh the removal of a child or the denial of unless he got hepatitis from that.

Well, true. I don't know that he did that. I'm not trying to make facts.

It could be, but we're limited to the facts that we have here, right? Um, you know, I I have to disagree with my brother that I think that a parent in these same circumstances would have the department involved because this is a

parent, this is a proposed parent, proposed guardian who's doing what she can in a difficult situation that is different than a parent who is seeing a difficult situation and not acting. Can can I ask a question? The your

opponent's brief or the mother's brief anyway asks for a secure facility. I I was wondering is that something that can in this context be ordered? I mean I I don't know what they meant but obviously I'm thinking like a a DY facility. Can

you can is that an option? Uh not at that hearing. Um there there are certainly kids in DCF custody can end up in secured facilities, but I I don't think that it would involve being placed there. pursue a sponte by a judge in a

guardianship proceeding. Okay. The options that were available were the reasonable options that were available were either just no to the guardianship petition with instruction to the department to figure it out. At to Justice Sax's point, he she he would have just stayed

with his grandmother. Um there was no abuse of discretion by the department placing him there. And there was no motion or argument to meet that standard to make him move. Um or adop, you know, granting the guardianship which would

have kept him where he was, but would have provided him did provide him with the permanency and the stability of knowing who his permanent family is, who his person is. And as we know from Nancy and innumerable other

cases in the Commonwealth, part of the benefit of providing permanency is, you know, emotional for the child. It's not just that they're not being physically moved around or that they're in a place where good things are happening to them.

It's also that it removes the uncertainty that he's going to court or he knows that court hearings are regularly happening where he could be sent home to the woman who stabbed him in the head and that is something that

still traumatized him to date and it was uh absolutely a contributing factor to the behaviors that mother seeks to lay at grandmother's feet. Um, this is a child who deserved to have that stability and that safety and and the

record is sufficient and the judge did not heir in providing it to him. Could could you address the um mother's reliance on care protection of Aaron the SJC decision that says because the factual basis for the initial determination of unfitness ideally

should appear somewhere in the record either in a court of colloqui or in a writing signed by the parties.

So the court I mean the mother was found unfit that judgment was still good as and that judgment was acknowledged. The court had evidence that mother had assaulted the child. Um that's not that was obviously not so stale as to be

immune from consider precluded from consideration. The court had evidence that since that time the child who was 16 that's all children's wishes are relevant but that's old enough that it is not dis dispositive but certainly very relevant um felt unsafe around him and felt safe

where he was. And the evidence also contained that during the few times that mother interacted with child, the interactions were mostly criticism and argument, which is the same thing that led to the violent outburst.

But but it seems to me that we're talking about Aaron because the mother at the guardianship hearing said, "I can't take the child back." Yes. That's the analogy to the stipulation of unfitness at issue in Aaron.

Yes. So, um, does the, uh, does Aaron suggest that the mother's statement that she can't take the child back, uh, need to be formalized in some way?

I don't think it does because I think this is a different circumstance than a formal stipulation. You shouldn't show up to trial and say, "I'm stipulating to my unfitness." she already was unfit and she was conceding in that point that she

was not in a position to take the child back. And I and it it is a little bit threading a needle, but it is different to affirmatively stipulate versus to just not argue something. And I think that's what the statement was. Their

attorney was asked, "Is your client asking for custody?" She said, "No." He said, "I'm only here to argue against the wrong placement." those two different parts of the transcript.

But if we were to affirm on the basis that she just wasn't available at the time of the guardianship appointment and therefore I mean that's one of the predicates for appointing a guardian if a parent is unfit or unavailable. If

we're going to if we affirmed based on that agreement that she couldn't take the child back, then you're saying that doesn't need to be formalized the way a stipulation of unfitness would be.

I don't I don't believe that it would. And I also think that if it did it, you know, certainly this would not count as a full colloquy, but he the court did inquire what he wanted on three different occasions as well two

occasions asked what um what mother was seeking in the proceedings and was given unequivocal answers from counsel. Um, so I think there's enough there, but I also think that this wasn't decided, as my brother correctly notes, it wasn't decided on a

formal waiver. Rather, it was simply an argument that was not, it was a point that was not contested. It was already in place because mother had been found unfit. Mother wasn't seeking review of the decision, finding her unfit. Wasn't

asking the court to do that. Well, the department has to prove it in a guardianship proceeding, right?

And and convincing evidence. Yes. And and the evidence supporting that was that she was found unfit and that her behavior since that time remained demonstrating the same concerns. You know, while she has not had the opportunity to assault the child

again, the same sort of precursor behaviors were still there in her interactions and the child was still acting out. I see my time is up. I'm happy to expound further, but otherwise I'll rest.

Seeing none. Thank you. Thank you, Miss O'Brien. Good morning, your honor. It's Tamika O'Brien on behalf of the child. Your honor, the child at the guardianship trial um maintained that it was in his best interest and that it was in his

wishes that he remain with grandmother. Um, I don't have a whole lot to add here, but I I can say that mother may not have been required to offer any alternative placements, but as Justice Wood mentioned, it's not

particularly practical to remove a 16-year-old child who's lived with his mo grandmother for the past few years, two or three years, and put him in a group home.

that's not practical at all to remove him from that permanency and stability. Um so while mother may not have had an obligation to put forth um an alternative placement when the judge looks at this case the judge looked at it correctly of

where would we place this child? This child's not able to go home. Mother's not a available for custody. He's at grandmother's house and maybe grandmother's not the most perfect guardian. But she's doing the best she can. And this is where the child feels

safe and that is important here. Um the child will be 18 in October and he made his wishes very clear on multiple times that he wanted to remain with grandmother.

Um I have a question about a citation at page 26 brief. It's it's to a case also cited by the mother I think uh guardianship of sem um and on page 26 you say in sem this court or panel this court vacated a

guardianship where the proposed guardian failed to provide structure or supervision and where the record affirmatively demonstrated that the guardian's conduct undermined the child's welfare. So I I looked at Salem.

Sure. In the appendices or the agenda to the briefs and it doesn't seem to say anything like that.

You are correct. I misread that case and I did notice that after I filed the brief and I probably should have filed a corrected brief. So I apologize for that.

Can can you maybe write a letter in explaining how that happened? Yes, absolutely. Because it it's I don't see anything in Selen that even suggests that. So it's it's a concern.

Thank you. Does the panel have any other questions? I'm seeing none. Thank you. Thank you all.

Your honors, the uh child requests that the judgment be upheld. Thank you. Our last case is 25p 47 Katsman versus Gobody.

Mr. SG I don't understand. May it please the court. Raymond S on behalf of the appellants. This was a civil judgment that was procured by manipulation and trickery and cannot stand. This jury in this case did not have all of the

information and did not get the complete case and therefore we cannot rely on what the jury said. This jury was both uninformed and misinformed. A new trial is required in the interest of justice.

The plaintiff's case in this in this matter involved a claim that he was an uneducated man and did not know what a short sale was and did not sign any of the application or other documents.

Therefore, he relied exclusively on Mitra Gobati, who was not his realtor, but someone that he knew. She happens to be a realtor. She was a facilitator in this case. He alleges that all of the signatures were a forgery.

We know what the allegations are. So, why don't you get to what why the jury was uninformed or misinformed? You say uninformed, which suggests you're complaining about the exclusion of some evidence.

Yes, your honor. I didn't see any claim to that effect in your brief. There were 4,000 pages of previously undisclosed discovery that was disclosed as they were impaneling the jury. This case was six.

And at some point, the judge said, "Okay, I understand there's some disputes over the admissibility of this.

Why don't you two sit in together and you can use my courtroom this afternoon if you want um narrow your differences and come back to me with any issues tomorrow morning." And the only one who came back with issues was the plaintiff

suggesting that some of the documents that he had disclosed should not be admissible and the judge resolved those disputes. But I don't see where you objected to the use of any of those documents until I guess maybe your

motion for new trial which is kind of too late. Well, your honor, I I submit I first of all it was not trial counsel. Um but trial counsel did object to the documents and his objections were overruled where

I looked at uh the transcript at 604 608 632 641. I couldn't find it.

Well, remember the doc, your honor, the documents were not turned over until the 16th. He objected the next day. Um Okay. What page?

Believe it's first is page They discussed it at page 70. Only limited docs in the discovery once a trial began. Page 70 of the January 16th uh binder. He discussed it there.

What What page is that of the record appendix uh transcript record? I sorry your honor, I don't have that handy.

It's page 70 of which transcript? which January 16th, the day they were impaneling the jury.

But in in uh your brief, I think at page 30, you say uh none of the since the business certifications pursued to 23378 were missing, none of these documents were admitted into evidence. Right. So how isn't that uh dispositive?

No, because his claim was he had never done this before. The documents actually had evidence of transactions, short sale transactions he had engaged in in 2011, 2012, 2013. His signature was on those documents and the judge allowed him to

ask the the plaintiff, but because there were no certifications, that ended the inquiry. So this jury was not informed about that he had that the plaintiff had engaged in short sale transactions or at least gone through the process with other realtors

besides and before this transaction. So it completely in this case your opponent will say the you're mischaracterizing the fundamental claim here. The fundamental claim is not that he didn't know anything about short sales. The fundamental claim is this

short sale this uh uh these defendants promised him three things and you know the three things and uh then uh did not deliver those three things and so that's fraud and breach of contract etc. Um and it has nothing to do with his knowledge.

So how were you prejudiced given that that was what the actual allegation was? His allegations was actually that I never signed anything and I didn't know anything about this transaction at all and I didn't know anything about short

sale. I didn't know what that was. Sir, I didn't know anything about this transaction. He he that wasn't his allegation. His allegation was I did know about the transaction. They promised me these things and then they didn't give me these things.

He said both, your honor. I submit that the transcript submits both. He said both. I didn't know anything about this.

And then he said, "I didn't sign those documents. It's not my signature. But he also What do you mean in the 4,000 pages?

That's is that what you're talking about? Are you talking about in this case? In this case, right? Okay.

Yeah. In in the prior um docu about a half a binder's worth of documents um about he and uh my client testified a little bit about it that he had pulled out um in a prior transaction.

Did you use those documents in your defense? I'm sorry. Did you use the documents in your honor? The trial council was not allowed to because he asked the plaintiff, "Isn't that your signature?" once he denied it, then the judge said, "You

can't go any further." That's it. So, on top of not getting the documents in a timely fashion to conduct the discovery on his own, he was not able to even ask and go any further. I guess this goes

back I had the same question that Justice Saxs had and you were given or trial council was given the opportunity to sit down with plaintiffs council and go through these documents and were any objections made by defense as a result

of that meeting if it occurred? Yes, there were there were objections and that's what I was referring to. I I thought I answered that for Justice Sax and I apologize that that wasn't clear.

He did bring it up. He was overruled. Did you did he ever seek more time to to investigate the documents?

Um, I did not see that in the uh in the record, your honor. I just saw that he repeatedly objected both to the documents and to Mr. Crease and he was object and his objections were overruled by the trial judge. Now, the documents,

your honor, um, if there were witnesses that, uh, realators who could have come in and testified, the process that they went through in 11, 12, and 13 with Mr.

uh St. Louis that would have completely undermined his case I suggest um and made his case far less palatable.

The second your honor issue is the issue about Daryl Crease. I didn't see an objection to Mr. Crease either. I didn't see an objection to his testimony. I saw a request for Vardier which was denied and then nothing

further. There is an objection in there as well. He did object when he when they first raised that he was a rebuttal witness. He objected that he wasn't disclosed prior to trial and he was not an appropriate rebuttal witness.

Where is that objection raised? That's later on in the trial. At the time, not at the time he testified. I'm sorry.

It was after he testified. No, no, no. After the plaintiff arrested, they they uh they indicated that You're having to stand at the podium, sir. The microphone's not going to pick it up.

I'm sorry. You won't be recorded if you're not standing at the podium. I I I'd have to find the pager, honor it.

You can bring it over to the podium. I'm sorry. You can bring your binder to the podium.

This was during the trial when it was announced that Mr. um I can't put my hands on that right now.

If I can just have a minute. Can I ask you a question about the damages?

Suppose we agree with you that the uh damages were excessive because the jury relied on the valuation at the time of trial rather than at the time of the short sale and the very closely thereafter sale to someone else. Um

so what's the remedy for that? Is it a new trial? Do we send it back to the trial judge to say uh to determine whether a remitter is appropriate? In other words, give the the uh plaintiff the option of

accepting a remitter or else getting a new trial. I mean, we can't resolve ourselves what the proper damages are on this record, can we?

I don't think you can. I think that um the first three issues go to an issue whether a new trial. The damages, I agree, were also wrong because this is nine years later.

I understand your argument that they're wrong, but if we agree with you, what do we do? I think that you need expert testimony with regard to the condition of the property at the time, what it took to put the house in the condition

it was in based on the city's assessment and what was the value of the house at the time as your honor said at the time the house was resold because I I think but if we agree with you that that's the

u correct theory what's the remedy here? Do we order a new trial? Do we um order the judge to consider a remitor or else a new trial or do we set the do we reduce the amount of the damages

judgment ourselves? I don't think you have the information to be able to do to for you to set the the uh the amount. I think that it would be remanded. Um, again, I'm not waving the the first arguments, but

understanding where you're going, I think that the correct remedy on if that's the only issue would be it's remanded back to the court to conduct further conduct further hearings consistent with the rulings of this court and that would be to correctly

assess what the value of the property was so you can so that the appropriate amount of damages could be awarded. Very different than nine years later.

Okay. But procedurally, what's the right way to do that? Um, should the judge have uh granted the motion for a remitor or a new trial? In other words, if your argument after trial it was, and I think it was, that the damages were excessive

and should be reduced, then uh does the judge have the power to just reduce them like that and uh uh that's the end of it or does the judge have to reduce them and uh offer a remitor as an alternative

to a new trial? I think the plaint of the choice. May may I reply? Your honor, I think it's appropriate that the issue of damages is not something that that the judge had within his own knowledge and therefore it would require testimony and

data before the court to reach the right number. Unless all the testimony is there, the judge heard it. Um, judges have to do this all the time when a remitter is sought, don't they? They have to determine not

necessarily what the precise correct amount of damage is is, but I think as you you may have said in your um your post-trial motion, um they need to find somewhere that's in the reasonable range. Well, they could they could do

that if they looked at the the the uh value of the house, what it was sold for when it was sold in I think the if I remember right, the issue the dates were the sale was in March, the house was

resold in June. In between you had the loans that were taken on the house and to re and the judge could do that parts for the judge to look at in figuring out a number I suppose, right?

But do you have some authority that says that that would be the way to do it rather than the remanding to the judge just to reduce the uh judgment?

I would I again um I believe I cited some case law in the damages section which is the argument at the end that talked about the correct me but I didn't see anything there that prescribes the procedure. So if you have

something, maybe you can send it in. I would say the Barshack case also talks about the difference between the property value and what the defendant had paid.

Yeah, that's the measure of damages, but that's not quite how you go about it.

Um, on the Daryl Crease, if I may just briefly in the time that I have left, Mr. Crease admitted that he had no personal knowledge. The judge admitted cautioned plaintiff's counsel and plaintiff that Mr. Crease could only testify on personal knowledge that which

he heard and saw. But his what he testified about was his prior interactions with uh the defendant. And it seemed relevant given uh her testimony that uh her original plan was to let the plaintiff live in the house,

get it renovated, and live in the house rentree. In fact, Mr. Crease's testimony suggested that was never the plan. The plan was consistent with what she always did, which is to flip these things quickly. And that seems relevant.

But Mr. Crease did not have personal knowledge beyond the first meeting in 2011. what transpired between these parties in the four years there.

I thought that he testified that he had seven done seven transactions with her and that he had that was her MO.

Again, not this transaction. So, that becomes character evidence and a and a smear against her.

Okay. Right. Thank you. Which is exactly what the court said they weren't going to be allowed to do.

Thank you for your time, Miss Blueford. Get out of your way. Good afternoon. Um, I think it's afternoon. May it please the court attorney Nicole Bluefort for the late Christopher St. Louis um who had passed away. Stepping in his shoes now is

Jackie Catsman, the personal representative of the estate. Um, I have to uh highly disagree with my brother here that uh this case is about manipulation in the jury um being uninformed here. I just think respectfully um the defense um just

didn't present their case very well. So, let me just jump right into it. Let's start with the production of the 4,000 um pages that they claim. And just so the court is aware, I am the council that handled the the the case. I was the

only council um that handled the the matter. So um I would agree if 4,000 pages were presented to any lawyer on the day of trial that that would be unfair and even beyond that even if the judge said well let's cure it by you

know you using the courtroom to go through documents etc. that that would be enough. However, what my my brother in his brief and his oral argument today didn't uh present to the court, the arguments that were made um by myself at

that time that the court very well took into consideration in their curing of the matter. This was no way, shape or form late production of documents. And I'm sure that the court had probably saw in um our response to the opposition of

the motion uh for the new trial that in fact it was produced in 2019. It was produced in 2020, the same documents. It was produced in 2023. And in fact, in 2023, we were uh in regards to a

decision made by the court, I had to email the clerk of the court with all documents pursuant uh that we were going to be using at this trial. So to say that they're receiving those documents um you know, right before trial is is is

not the case. Well, we can't resolve the factual issue and we don't have the 4,000 documents to go through one by one to make sure when and whether they were produced. Uh but do you agree that the documents were objected to on the basis

of late production? They he did not object to it. Um and that's why he could not point it out uh here in the transcript. However, did he raise the issue uh of the fact that you know he needs more time to go through

it? Yes, he did. And as that your honest had pointed out at the conclusion of the meeting, I'm the only one that came back with issues in regards to the documents that were uh produced. I think there are

multiple ways that you know a defense council if he feels that um he's getting documents late in the stage game.

I thought he did not ask for more time. He did. No, he did not. I'm saying he could have asked for more time. He could have asked for a continuence. He didn't do any of those things. And I think that

would have been the proper objection. Just him raising the issue prior to the start of the trial, me making those arguments. Well, the judge is saying, "Hey, this is the way I can cure it based on the arguments made by both

parties." He came back and moved forward with the trial. That was on him to to move forward and we did. So, um I also want to raise another point. Uh he makes an issue of the documents of the 4,000

pages, but yet it was trying to admit the documents that um we had produced.

So, it's it's kind of it's either one or the other argument. Can I switch you to a different topic? Yes. Which is the evidence that Mr. Fitzgerald was involved in any way in this uh alleged fraudulent scheme, right? I mean, it seems to me that the

they were married and he handled some of the paperwork and he was I guess signing things on behalf of the LLC, but there's no evidence that he ever spoke to Mr. St.

Louis. Um there's no evidence about internal communications between him and his his wife, Mrs. Gabat, not surprisingly. What is the evidence that he knew of any fraudulent scheme?

Case law doesn't necessarily require um the evidence of the interaction, if that's what you're getting at, between um Mr. Christopher St. Louis and u Mr.

Fitzgerald. just the fact that he had conscious uh knowledge of the fraud um or he had conscious knowledge or even that he was willfully disregarding it. I think it's important as you mentioned they are married. He um Mer goad gobbadi

separate of that is a representative of of him. I think it is also in when I say representative as acted as a broker a representative on on uh his behalf and it's very clear that they were they worked together in past transactions. So

to not think that they had any communications with each other I think he was very knowledgeable. Um I I would also she sorry but if she again specifically there's these three promises it what's the evidence that he knew these three

promises had been made the the details of the deal in other words I can understand an inference that okay goati says we we're buying this house Mr. St.

Louis's house. Okay, we're doing a short sale situation. We've done that before. He's over. Okay, we're doing that. He's involved in buying the house. But what's the evidence that he knew the specific deal she had worked out which was the

basis for these allegations of fraud and uh breach of contract? I would argue the fact that in order for a buyer, broker, agent, whatever you want to call it, to enter into a transaction, they can't do it without

giving you the information. So oftent times um homeowners uh or sellers or buyers in transactions right we have this middle piece the realtor that makes representations based on you know what we say and then they come back to us and

tell us what is is a part of the deal and in the negotiations. So I'm saying that essentially she was an agent of him and he could not get into this deal without communications from her and based on her communications from her

they together conspired in this fraud if that if that's making sense. It it can't be just she have knowledge of one thing and he have knowledge of the other. She would need to represent whatever was told to her comes back to

you. Maybe if she's staying within the scope of what you are calling an agency agreement, but sometimes agents go outside the the scope of their authority that may Did he authorize him to um make false representations to her to induce to

sorry did he authorize Miss Gobadi to make false representations to the plaintiff to induce him to enter into this agreement?

I think we have some knowledge of Mr. Fitzgerald knowing about this by way of the fact that there was already a signed deed signed on the day of the closing transaction. I don't know if hopefully the court caught that. And I think that

was something about the date of a notoriization which I the date of the the notoriization and I think that was mind-blowing to the jury.

If you're making these promises that you are going to live in this house indefinitely and that all you need to do is essentially do these renovations. How is it on the same day of the sale the deed which was subse sub subsequently

recorded in June notorized in March the same exact date and on crossexamination on Miss Gobody it was a mistake sorry right she but right right that's what I was going to say I think Miss Gobody was the one who was test questioned about

that but the question here is what did Mr. Fitzgerald know I think that there's ample evidence. Goati admitted to a lot of this on in testimony, but the question is I keep having anyway is what did what's the evidence that Mr.

Fitzgerald knew about any of the material elements of the fraud? Um, and I'm not seeing any I guess there's there's nothing directly because there was never a conversation.

There's no documentary evidence here. But again, I go to the common practice that when people enter into transactions, I'm talking buyers and sellers, they often don't interact with each other. They don't. And that's why you have realtors. We And the realtors

are a mouthpiece for you. They don't know knowledge about your house. They don't know about conditions. They go off of you, the homeowner, and they make those representations and and vice versa. So, I I think oftent times they're, you know, they're congruent in

what they in the knowledge that they know. I also wanted to take a moment to state this. Um, also furthering uh his knowledge of it is the fact that he had interactions later after they closed in regards to the work that was being

performed in the renovations which was consistent with u what Miss U goati had testified to.

Can you point me to where in the exhibits volume this um this uh notoriization dated on the date of the original transaction appears?

On the in the exhibits you're saying? Yes. I didn't see it in your brief and I couldn't find it.

You know, I don't I don't have that handy. I can represent as an officer to the court that that was introduced um to the court cuz obamination.

I asked her about it. She did did not deny it. Um it was it was a mistake. I don't know how she could testify it was a mistake about what a notary did, but then it was recorded in June. And that's

nothing but being strategic. Why notoriize something in March? Quick claim deed. Is is that what we're talking about? The quick claim deed.

The quick claim deed that was subsequently uh went just asking if it is. I don't mean to change the subject. Isn't Is that not what we're talking about? The quick We are talking about the quick claim deed that went to Oz Oz 14 I think LLC.

I think it's exhibit 45. I think it's RA uh 2 page uh 243 and 244. I think. Thank Thank you, your honor.

Uh can we get to the issue of the damages? Um if the judge made a mistake in in denying a reduction in the damages because of the um reliance on the value at time of trial rather than at the time

of the sale by the defendants to the Oz realy organization. If he made a mistake, then what? And I know you say that he didn't, right?

That's a given. Um, but assume he did. What's the remedy for us? Uh, if he made a mistake, which I'm I'm not saying he he didn't, I I'm hard to answer that question because it was already, you know, looked at. Uh, and I

although I don't necessarily agree with what he did with reducing the award. He did. Uh, and at that point, I I I do argue that that it's fair. So, if you already looked at this and felt as though that the evidence that was

produced at that point in time, because I I would say unless you're doing a a retrial of this whole thing where everybody's producing evidence, which I don't I don't think the court's getting to, he's going to be limited to what he

has and what does he have. He has the testimony of Christopher St. Louis that um you know, testified to what he felt his evaluation was. Now, you know, obviously, uh, he was cross-exam cross-examined and that cross-examination was in front of the

jury. And then, I guess the question is more procedural. It's assuming that the judge decided the damages incorrectly. Procedurally, if we were to send it back because of that, what what how would it take shape procedurally?

I'm not often lost for words, but on this one, I do not know honestly what the procedure would be. Um, it's always asked the hardest question.

Yeah, that one I I I don't have an answer for. Um, do you agree? How could the value at the time of trial be relevant to the damages on the theories on which the the jury ruled for you?

Well, breach of contract, fraud in the inducement, um, among some other claims. I I don't think it can just be it it can go to the time of the the valuation at the time of trial because I I do think

it includes all all of the value that he lost all that time. We know when when this claim was filed well the closing was 2015.

The breach of contract theory that you succeeded on was not that there was a a contract to reconvey the property to Mr.

St. Louis. Correct. It was the contract about you can live there for $2,000 rent and uh and we'll pay your tax lean. So, um, you can't get expectation damages for a breach of a promise to reconvey the property where that was never, uh,

the the jury didn't decide that theory. I understand the point, but what we were we were successful on is the fraud in the inducement that he would not have entered into this transaction, but for what those promises were. So, it's

essentially putting Mr. St. Lewis back into the position he would have been had he not sold the home. So if we go to the sale, I think you're limiting him and you're not making him whole. If you're understanding my argument, we're putting

him back into the position had he would have been had he not sold because I think it was very clear from Jackie Katsman. It was clear from Daryl Crease um that he would not have sold that property. He was not interested in

selling the property. He was told he was going to get it back. And again, I I know that that is a separate point, but the goal is to put the plaintiff back in the position he would have been. And if

we do anything short of the uh evaluation, you're not getting justice for my client.

If your honor as though I have any further questions, I'm going to rest on my brief.

Thank you. Thank you both. Well, thank you so much for your time. Um with that, I'll bring to close today's session. I'd like to thank my panel, our law clerks, our court officers, our court uh clerk staff, our

excellent timekeeper, and we'll stand in recess. All rise.