WEBVTT 2 00:00:04.408 --> 00:01:00.280 OO. MAY WE PLEASE HAVE APPEARANCES OF COUNSEL. (APPEARANCES 3 00:01:00.280 --> 00:01:17.124 TENDERED.) CHIEF JUSTICE RABNER: GOOD AFTERNOON, COUNSEL AND WELCOME. 4 00:01:17.124 --> 00:01:23.100 MR.. SAMEL, PLEASE. MATTHEW S. SAMEL: THANK YOU, YOUR HONOR. 5 00:01:23.100 --> 00:01:27.762 JUST AT THE OUTSET I WOULD LIKE TO REQUEST A COUPLE OF MINUTES OF REBUTTAL TIME IF THAT'S 6 00:01:27.762 --> 00:01:32.229 APPROPRIATE IN THIS CASE AND NECESSARY. GOOD AFTERNOON TO ALL AND MAY IT PLEASE 7 00:01:32.229 --> 00:01:36.109 THE COURT. IN THIS CASE THE MAJORITY OF THE APPELLATE DIVISION SUBSTITUTED 8 00:01:36.109 --> 00:01:41.765 THEIR JUDGMENT SO THAT THE PARTIES AND THE TRIAL COURT WHO KNEW THE CASE BEST, THE MAJORITY 9 00:01:41.765 --> 00:01:46.092 ALSO CREATED AND RELIED ON THEIR OWN VERSION OF THE RECORD INSTEAD OF THE ACTUAL EVIDENCE 10 00:01:46.092 --> 00:01:51.020 THAT WAS ADMITTED IN COURT DURING THIS TRIAL. THEY FURTHER MISAPPLIED THE 11 00:01:51.020 --> 00:01:58.846 LAW INVOLVING PASSION/PROVOCATION TO AN UNWORKABLE VERSION OF THIS IMPORTANT BUT 12 00:01:58.846 --> 00:02:04.242 NARROWLY APPLIED LESSER INCLUDED OFFENSE. THIS COURT MUST ADOPT THE SOUND REASONING 13 00:02:04.242 --> 00:02:11.068 AND DECISION OF THE DISSENTING JUDGE AND REJECT THE FUNDAMENTALLY FLAWED OPINION OF THE 14 00:02:11.068 --> 00:02:15.205 MAJORITY FOR THE FOLLOWING THREE REASONS HERE. THE MAJORITY, FIRST, RELIED 15 00:02:15.205 --> 00:02:22.198 ON ARGUMENTS OF COUNSEL, ASSUMPTION AND SPECULATION ABOUT FACTS WHILE IGNORING ACTUAL 16 00:02:22.198 --> 00:02:28.769 EVIDENCE ADMITTED IN COURT THAT CONTRADICTED THEIR THEORY OF PASSION/PROVOCATION. 17 00:02:28.769 --> 00:02:33.432 SECONDLY, THE MAJORITY IMPROPERLY VIEWED THE EVIDENCE IN THIS CASE IN THE LIGHT MOST 18 00:02:33.432 --> 00:02:39.519 FAVORABLE TO THE DEFENDANT AND, THIRD, THE MAJORITY CONDUCTED AN ENTIRELY DEFICIENT AND 19 00:02:39.519 --> 00:02:45.372 INCOMPLETE PLAIN ERROR ANALYSIS. FIRST, REGARDING ARGUMENTS OF COUNSEL. WE 20 00:02:45.372 --> 00:02:49.707 KNOW AND IT'S WELL ESTABLISHED THAT ARGUMENTS OF COUNSEL ARE NOT THAT, THEY ARE NOT EVIDENCE 21 00:02:49.707 --> 00:02:56.859 AND THIS IS INSTRUCTED TO JURIES NUMEROUS TIMES THROUGHOUT THE COURSE OF TRIAL SO THAT 22 00:02:56.859 --> 00:03:00.413 JURORS DO NOT CONSIDER IT TO BE EVIDENCE. DESPITE THIS, THE MAJORITY GROUNDS 23 00:03:00.413 --> 00:03:05.726 THE ENTIRE PASSION/PROVOCATION THEORY ON THE PROSECUTOR'S ARGUMENT IN CLOSING AND OPENING 24 00:03:05.726 --> 00:03:12.434 AND THE STATE'S THEORY OF THE CASE WHILE GIVING NO DEFERENCE WHATSOEVER TO THE DEFENDANT'S 25 00:03:12.434 --> 00:03:17.552 CHOSEN TRIAL STRATEGY AND CHOSEN DEFENSE. THE MAJORITY'S FIRST AN ONLY CITATION 26 00:03:17.552 --> 00:03:23.312 TO THE RECORD ARE IN ITS PASSION/PROVOCATION VOCATION LEGAL ANALYSIS COMES ON PAGE 10 27 00:03:23.312 --> 00:03:27.069 WHEN THEY MENTION THE PROSECUTOR'S OPENING AN CLOSING STATEMENTS AND REFERENCES TO THE 28 00:03:27.069 --> 00:03:34.487 DEFENDANT BEING ENRAGED OR ANGRY AND AS WE KNOW AND AS THE SENTENCE DISSENTING JUDGE 29 00:03:34.487 --> 00:03:40.708 APTLY POINTS OUT IN THEIR DISSENTING OPINION THERE IS A SIGNIFICANCE DEFENSE, DIFFERENCE 30 00:03:40.708 --> 00:03:47.780 BETWEEN ANG GEFR AND BEING PASSIONATELY PROEF VOEKD UNDERSTAND THE LAW. THE 31 00:03:47.780 --> 00:03:55.410 LAW MAKES NUM AND THAT MAINLY STEMS FROM THE SUPPOSEDLY PROVOKING EVENT AS TO WHAT THE 32 00:03:55.410 --> 00:04:01.035 DEFENDANT SPECIFICALLY SAW THAT UPSET HIM AND THE AFFECT IT HAD ON THE DEFENDANT'S MENTAL 33 00:04:01.035 --> 00:04:05.651 STATE. THE MAJORITY FIRST ASSUMED TO KNOW EXACTLY WHAT THE DEFENDANT SAW THAT 34 00:04:05.651 --> 00:04:10.980 SUPPOSEDLY PROVOKED HIM. THE FACT IS HERE, THAT THERE WERE ONLY TWO PEOPLE, 35 00:04:10.980 --> 00:04:17.230 TWO PEOPLE COULD HAVE TOLD US WHAT THE DEFENDANT SAW THAT SUPPOSEDLY ANGERED HIM AND WHY 36 00:04:17.230 --> 00:04:23.404 IT ANGERED HIM THAT WAS M.L. THE DOMESTIC VIOLENCE VICTIM AND THE DEFENDANT HIMSELF. 37 00:04:23.404 --> 00:04:26.414 WE KNOW THE DEFENDANT DID NOT TESTIFY OR GIVE ANY STATEMENTS THAT WERE USED 38 00:04:26.414 --> 00:04:30.254 AT TRIAL. M.L. TESTIFIED ON THE OTHER HAND THAT THE ASSAULT AND DOMESTIC VIOLENCE 39 00:04:30.254 --> 00:04:36.111 INCIDENT WHICH ANGERED THE DEFENDANT HAD NOTHING TO DO WITH THE HOMICIDE VICTIM, LUIS 40 00:04:36.111 --> 00:04:46.049 GONZALEZ. IT WAS OVER A PHONE CALL FROM A THIRD PARTY. IT WAS ARGUED NOT ONLY THE DEFENSE 41 00:04:46.049 --> 00:04:50.477 ARGUMENTS BUT ALSO IN THE WAY THEY CROSS EXAMINED THEIR WITNESSES THE STATE'S WITNESSES. 42 00:04:50.477 --> 00:04:54.953 AND NOW WHILE THE STATE ARGUED THAT THERE WERE REASONABLE INFERENCES FROM 43 00:04:54.953 --> 00:05:00.647 OTHER EVIDENCE IN THE CASE THAT SHOWED THAT THE DEFENDANT DID VIEW TMS BETWEEN M.L. AND 44 00:05:00.647 --> 00:05:05.296 GONZALEZ, WE DID NOT OFFER ONE SPECIFIC MESSAGE OR GROUP OF MESSAGES THAT THE DEFENDANT 45 00:05:05.296 --> 00:05:10.835 VIEWED BECAUSE THERE WAS SIMPLY NO EVIDENCE OF THAT. WE HAD NO INFORMATION 46 00:05:10.835 --> 00:05:16.407 TO TELL US WHAT HE SPECIFICALLY SAW AND M.L. THE ONLY OTHER PERSON WHO WAS THERE TELLS 47 00:05:16.407 --> 00:05:20.619 US IT WAS SOMETHING COMPLETELY DIFFERENT. THE FACT IS HERE, MOSTLY ALL OF THE 48 00:05:20.619 --> 00:05:26.708 TEXTS ADMITTED IN EVIDENCE IN THIS TRIAL WERE ABOUT M.L. AND GONZALEZ SELLING DRUGS 49 00:05:26.708 --> 00:05:31.170 TOGETHER. M.L. ONLY TESTIFIED ABOUT RESELLING DRUGS THAT SHE PURCHASED FROM 50 00:05:31.170 --> 00:05:36.718 GONZALEZ, NOT ABOUT USING THE HEROIN THAT WAS SUPPLIED TO HER SO IT IS FURTHER AN 51 00:05:36.718 --> 00:05:42.298 ASSUMPTION THAT SHE WAS INDICTED R ADDICTED AND USING THE DRUGS THAT GONZALEZ HAD SOLD 52 00:05:42.298 --> 00:05:48.058 TO HER. ADEQUATE PROVOCATION SIMPLY CANNOT BE CLEARLY INDICATED WHEN WE DON'T 53 00:05:48.058 --> 00:05:51.764 EVEN KNOW THE TRUE SOURCE OR THE CONTENT OF THE COMMUNICATION WITH GONZALEZ THAT SUPPOSEDLY 54 00:05:51.764 --> 00:05:57.392 PROVOKED THE DEFENDANT AND WHERE THE ONLY EYEWITNESS TELLS US IT HAS NOTHING TO DO WITH 55 00:05:57.392 --> 00:06:01.580 THE HOMICIDE VICTIM. THE GREATEST ASSUMPTION THAT THE MAJORITY MAKES IN THIS 56 00:06:01.580 --> 00:06:05.764 CASE IS THE DEFENDANT'S SUPPOSED CONCERN ABOUT M.L.'S HEALTH AND THE CONTINUANCE OF THE 57 00:06:05.764 --> 00:06:11.273 FAMILY STRUCTURE. SIMPLY PUT THERE WAS NO TEFRT WHATSOEVER ABOUT THE EX ES 58 00:06:11.273 --> 00:06:16.336 STENS OF ANY SORT OF FAMILY STRUCTURE OR THAT DEFENDANT WAS CONCERNED ABOUT IT COLLAPSING. 59 00:06:16.336 --> 00:06:22.387 M.L., NOR ANY OTHER WITNESS TOLD US ABOUT THE PARTNER THE DEFENDANT WAS TO 60 00:06:22.387 --> 00:06:26.683 HER OR THE FATHER THE DEFENDANT WAS TO THE CHILD OR THE EXTENT HE WAS INVOLVED IN HERS 61 00:06:26.683 --> 00:06:32.931 OR THE CHILD'S LIFE. FURTHERMORE, THERE ARE TEXT MESSAGES FROM THE DEFENDANT 62 00:06:32.931 --> 00:06:40.151 TO M.L. AFTER THE MURDER WAS COMMITTED ABOUT HER BUYING HEROIN AND HIS CONCERN OVER THAT. 63 00:06:40.151 --> 00:06:47.607 HE ALSO MENTIONS KEFRN, KERN OVER HIS PUBLIC IMAGE. THE DEFENDANT TELLS M.L. THAT SHE WAS 64 00:06:47.607 --> 00:06:52.446 MAKING HIM LOOK BAD AND THAT HE WOULDN'T CARE IF IT WAS COCAINE. FURTHERMORE, 65 00:06:52.446 --> 00:06:57.461 THE MAJORITY FAILED TO CONSIDER A LARGE PORTION OF CONFLICTING EVIDENCE THAT GOES DIRECTLY 66 00:06:57.461 --> 00:07:03.341 AGAINST THE THEORY MUCH PASSION/PROVOCATION, FIRST AND FOREMOST THEY IGNORED THE 67 00:07:03.341 --> 00:07:07.813 CIRCUMSTANCES OF THE VIOLENT ASSAULT AND TRANG LAGS OF M.L. IN FRONT OF THEIR MINOR CHILD. 68 00:07:07.813 --> 00:07:12.537 THIS COMPLETELY BE LIES ANY ASSUMPTION THAT THE DEFENDANT WAS SO CONCERNED ABOUT M.L.'S 69 00:07:12.537 --> 00:07:17.053 HEALTH AND THE CONTINUANCE OF THE PURPORTED FAMILY. THE ONLY EVIDENCE OF ANY 70 00:07:17.053 --> 00:07:22.300 REAL OBSERVABLE HARM TO M.L. THAT SHE WAS SUFFERING AT THAT TIME WAS THE INJURIES THAT 71 00:07:22.300 --> 00:07:26.665 THE DEFENDANT INFLICTED UPON HER HIMSELF. AND WITH REGARD TO THE COOLING OFF 72 00:07:26.665 --> 00:07:32.361 PERIOD, THE SECOND OBJECTIVE ELEMENT OF PASSION/PROVOCATION, THE MAJORITY RELIES ON 73 00:07:32.361 --> 00:07:38.938 TIME ALONE BUT IGNORES THE PRECISE SEE COMBENS OF EVENTS THAT OCCURRED IN THAT 40 PLUS 74 00:07:38.938 --> 00:07:44.271 TIME PERIOD BETWEEN THE SUPPOSED BLANK AND THE KILLING. ONE TURN AND ONE MILE 75 00:07:44.271 --> 00:07:48.730 AWAY FROM GONZALEZ HOUSE. INSTEAD OF GOING THERE HE DRIVES 15 MINUTES OUT OF THE WAY 76 00:07:48.730 --> 00:07:55.608 INTO NEIGHBORING TRENTON, STOPPING TO GET GAS, STOPPING AT DONE NELLY HOMES HOUSING COMPLEX 77 00:07:55.608 --> 00:07:59.175 FOR ABOUT FIVE MINUTES AND THEN ALL THE WAY BACK TO THE AREA OF THE VICTIM'S RESIDENCE. 78 00:07:59.175 --> 00:08:04.186 THESE INTERVENING ACTS MUST BE CONSIDERED IN TERMS OF WHETHER A REASONABLE PERSON IN 79 00:08:04.186 --> 00:08:08.696 THE DEFENDANT'S POSITION WOULD HAVE HAD SUFFICIENT OPPORTUNITY TO COOL OFF. THE 80 00:08:08.696 --> 00:08:13.816 MAJORITY FURTHER, IMPORTANTLY IGNORES THE FACT OF THE DEFENDANT'S MEETING WITH GONZALEZ 81 00:08:13.816 --> 00:08:20.177 8 MINUTES PRIOR TO THE MURDER THAT WAS CAPTURED ON VIDEO. THE EVIDENCE HERE SHOWS THE 82 00:08:20.177 --> 00:08:25.111 DEFENDANT DID LOCATE AND INTERACT WITH HIS INTENDED TARGET BUT THEN CIRCLED THE BLOCK 83 00:08:25.111 --> 00:08:31.175 AROUND THE AREA OF THE HOUSE PATIENTLY WAITING AN ADDITIONAL 8 MINUTES TO KILL GONZALEZ 84 00:08:31.175 --> 00:08:37.748 WHEN HE CAME OUTSIDE OF HIS EVIDENCE WHICH DEMONSTRATES CONTROLLED AND CALCULATED ANGER 85 00:08:37.748 --> 00:08:42.065 RATHER THAN A LOSS OF THE SENSES. GIVEN THE PASSAGE OF TIME ALL THE REASONABLE 86 00:08:42.065 --> 00:08:47.684 STOPS AND STARTS, A REASONABLE PERSON CERTAINLY WOULD HAVE HAD AMPLE TIME TO COOL OFF 87 00:08:47.684 --> 00:08:52.421 ESPECIALLY IN THOSE 8 MINUTES FOLLOWING THE INITIAL MEETING BETWEEN THE DEFENDANT AND 88 00:08:52.421 --> 00:08:57.174 GONZALEZ. NEXT, THE MAJORITY HERE IT IS APPARENT THEY VIEWED THE EVIDENCE 89 00:08:57.174 --> 00:09:03.118 IN THE LIGHT MOST FAVORABLE TO THE DEFENDANT AND WE KNOW IN THIS COURT'S CASE AN STATE 90 00:09:03.118 --> 00:09:10.067 V. KAN AND THE CANE FIELD AND THE APPELLATE DIVISION, IT IS CLEAR THAT SLEWING THE 91 00:09:10.067 --> 00:09:13.731 EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE DEFENDANT IS NOT APPLICABLE UNDER THE CLEARLY 92 00:09:13.731 --> 00:09:18.405 INDICATED STANDARD WHICH WE ARE DEALING WITH HERE SO THE CITATION IN THAT STANDARD HAS 93 00:09:18.405 --> 00:09:23.003 NO PLACE IN THIS OPINION AND IT IS CLEAR THAT THE MAJORITY DID RELY ON THAT STANDARD IN 94 00:09:23.003 --> 00:09:28.823 VIEWING THE RECORD IN THIS CASE GIVEN THE PLACE WHERE THAT CITE TAGS CITATION OCCURS. 95 00:09:28.823 --> 00:09:34.914 IT IS NOT THE LAW OR THE TRIAL JUDGE'S RESPONSIBILITY ON INSTRUCTING ON LESSER 96 00:09:34.914 --> 00:09:43.110 INCLUDED OFFENSES. I THINK FURTHER SUPPORT OF THIS IS THE ASSUMPTION THAT IS 97 00:09:43.110 --> 00:09:47.117 RELIED ON AND THE ARGUMENTS OF COUNSEL THAT ARE RELIED ON AND THE SIGNIFICANT STRETCHES 98 00:09:47.117 --> 00:09:53.211 THAT ARE TAKEN TO GET TO THIS ADEQUATE PROVOCATION. AND THAT IN EX STRIK 99 00:09:53.211 --> 00:09:58.570 ABDOMINAL BLEE AFFECTED THE LENS UPON WHICH THEY VIEWED THIS CASE AND DETERMINED THE ULTIMATE 100 00:09:58.570 --> 00:10:03.082 LY FLAWED OPINION THAT THEY DELIVERED. FINALLY THE MAJORITY'S PLAIN ERROR ANALYSIS 101 00:10:03.082 --> 00:10:09.031 WAS COMPLETELY DEFICIENT AND INCOMPLETE HERE. THE ENTIRE ANALYSIS IS ESSENTIAL 102 00:10:09.031 --> 00:10:13.874 LY ONE PARAGRAPH AND THEY RELY ON THE GENERALIZED IMPORTANCE OF CORRECT JURY INSTRUCTIONS 103 00:10:13.874 --> 00:10:18.224 THAT ARE IMPORTANT TO A FAIR TRIAL. THERE WAS NO CONSIDERATION IN THE PLAIN 104 00:10:18.224 --> 00:10:24.529 ERROR NAL ABOUT THE ANALYSIS ABOUT THE PRACTICAL EFFECT THAT SUCH A SURPRISING SUA SPONTE 105 00:10:24.529 --> 00:10:29.969 TEE INSTRUCTION WOULD HAVE HAD NOT ONLY ON THE JURY BURT THE REMAINDER OF TRIAL. 106 00:10:29.969 --> 00:10:34.302 PASSION/PROVOCATION HERE WAS ENTIRELY AT ODDS WITH THE DEFENDANTS IDENTIFICATION OFFENSE 107 00:10:34.302 --> 00:10:39.057 AND MANNER IN WHICH THE DEFENSE ATTORNEY CROSS EXAMINED THE STATE'S WITNESSES TO INFER 108 00:10:39.057 --> 00:10:44.300 THAT THE DOMESTIC VIOLENCE INCIDENT HAD NOTHING TO DO WITH THE MURDER OF GONZALEZ Z AND 109 00:10:44.300 --> 00:10:48.775 WAS COMPLETELY IRLTD TO THE CASE. THE PASSION/PROVOCATION INSTRUCTION HERE 110 00:10:48.775 --> 00:10:54.630 GIVEN THE DEFENSE WOULD HAVE ESSENTIALLY AMOUNTED TO A CONCESSION THAT WAS UNWANTED BY 111 00:10:54.630 --> 00:10:57.844 THE SCENE AND PUT HIM AT THE SCENE OF THE MURDER. JUSTICE WAINER APTER: 112 00:10:57.844 --> 00:11:02.813 I THINK ON THAT PARTICULAR POINT DEFENDANT IS ARGUING THERE IS NO NEED TO CONDUCT A 113 00:11:02.813 --> 00:11:08.546 SEPARATE PLAIN ERROR ANALYSIS BECAUSE THE STANDARD OF REVIEW HERE IS ONLY CLEARLY 114 00:11:08.546 --> 00:11:14.017 INDICATED/JUMPING OFF THE PAGE BECAUSE THE LESSER INCLUDED WAS NOT REQUESTED AT TRIAL AND 115 00:11:14.017 --> 00:11:20.624 SO THE STANDARD ITSELF ALREADY ASSUMES THAT WE'RE ON PLAIN ERROR REVIEW. ARE 116 00:11:20.624 --> 00:11:25.391 THERE CASES WHERE WE HAVE HELD THAT YOU HAVE TO APPLY THIS CLEARLY INDICATED/JUMPING OFF 117 00:11:25.391 --> 00:11:29.928 THE PAGE STANDARD WHERE THERE WAS NO REQUEST FOR THE CHARGE AT TRIAL BUT THEN SEPARATE 118 00:11:29.928 --> 00:11:34.681 LY AN ADDITIONAL PLAIN ERROR ANALYSIS, AS WELL. MATTHEW S. SAMEL: MY 119 00:11:34.681 --> 00:11:39.707 UNDERSTANDING IS THAT PLAIN ERROR IS THE BASIS UPON WHICH YOU HAVE TO FIND. THERE HAS 120 00:11:39.707 --> 00:11:44.451 TO BE PLAIN ERROR TO REVERSE THE CONVICTION. IT HAS TO BE CLEARLY INDICATED AND BEING 121 00:11:44.451 --> 00:11:48.942 CLEARLY INDICATED IT HAS TO BE CAPABLE OF LEADING TO A RESULT THAT THE JURY WOULD NOT 122 00:11:48.942 --> 00:11:53.076 HAVE OTHERWISE HAVE REACHED. IN THIS CASE, THERE IS A LOT THAT NEEDS TO BE 123 00:11:53.076 --> 00:11:57.834 CONSIDERED IN THE EFFECT THIS PASSION/PROVOCATION INSTRUCTION WOULD HAVE HAD IN THE MINDS 124 00:11:57.834 --> 00:12:04.460 OF THE JURY. IT WOULD HAVE BROUGHT SUFFICIENT INJURY CONFUSION. IT WOVR CUT AGAINST 125 00:12:04.460 --> 00:12:08.796 THE DEFENDANT'S WHOLE IDENTIFICATION DEFENSE WHICH IS NOT AN UNDERSTANDABLE OVERSIGHT 126 00:12:08.796 --> 00:12:12.866 ON THE PART OF THE DEFENDANT FOR FAILING TO CONSIDER A PASSION/PROVOCATION. THAT TAKES 127 00:12:12.866 --> 00:12:18.830 AWAY FROM ALL THE TIME AND EFFORT THAT THE PARTIES SPERNT IN HEARING AND PROSECUTING AND 128 00:12:18.830 --> 00:12:24.214 DEFENDING AGAINST THIS CASE. IT WAS A SOUND STRATEGIC DECISION BASED ON THE ACTUAL 129 00:12:24.214 --> 00:12:29.328 EVIDENCE THAT WAS ADMITTED IN COURT IN THIS TRIAL. HERE IN THIS CASE, TLFRS NO PERSON 130 00:12:29.328 --> 00:12:34.065 THAT TOOK THE STAND AND SAID THE DEFENDANT WAS THE SHOOTER. THERE WAS ABSOLUTELY 131 00:12:34.065 --> 00:12:38.962 NO IDENTIFIABLE CONNECTION BETWEEN THE DEFENDANT AND GONZALEZ. THEY HAD NEVER MET EACH 132 00:12:38.962 --> 00:12:43.126 OTHER. THEY DIDN'T KNOW EACH OTHER AND THEY HAD NEVER HEARD OF EACH OTHER UNTIL THE DATE 133 00:12:43.126 --> 00:12:49.218 OF THE MURDER. THERE WAS ALSO GRAINY SURVEILLANCE VIDEO THAT CAPTURED PORTIONS 134 00:12:49.218 --> 00:12:54.513 OF THE MURDER DUT CAN'T CAPTURE THE ULTIMATE SHOT THAT KILLED GONZALEZ HERE. HERE 135 00:12:54.513 --> 00:13:00.192 WE HAVE A WITNESS WHO WAS THE SOLELY WITNESS OF THE DOMESTIC VIOLENCE INCIDENT WHO TOLD 136 00:13:00.192 --> 00:13:08.344 US THAT WAS SPARKED NOT BY GONZALEZ BUT BY SOMEONE ELSE NAMED DONALD, THE FACTS VRP AND 137 00:13:08.344 --> 00:13:14.462 ISSUING THIS PASSION/PROVOCATION INSTRUCTION SUA SPONTE WOULD HAVE COMPLETELY CAUSED HIM 138 00:13:14.462 --> 00:13:19.898 TO LOSE ALL CREDIBILITY WITH THE JURORS. JUSTICE HOFFMAN: THE PAL LOW CASE 139 00:13:19.898 --> 00:13:29.130 DOESN'T MEAN THAT, CHIEF JUSTICE WIL LENT SKI 35 YEARS AGO SEEMS TO SAY THAT EVEN IF IT IS 140 00:13:29.130 --> 00:13:35.518 INCONSISTENT WITH THE DEFENSE'S TRIAL STRATEGY, IF IT IS WHAT THE FACTS REQUIRE, THE CHARGE 141 00:13:35.518 --> 00:13:46.391 SHOULD BE GIVEN. I'LL ADMIT I WAS SURPRISED TO READ HOW JUDGE STOL MUCH THAT DECISION 142 00:13:46.391 --> 00:13:52.211 WAS. BUT PAL LOW IS CRYSTAL CLEAR WHETHER THE DEFENSE TOOK THAT STRATEGY OR NOT WHETHER 143 00:13:52.211 --> 00:13:57.656 ITS EYES INCONSISTENT OR NOT THE CHARGE HAS TO GIVEN IF THE FACTS BLANK. HOW 144 00:13:57.656 --> 00:14:03.286 DO YOU READ -- HOW DO YOU SORT OF JUSTIFY THE ARGUMENT YOU JUST MADE VIS-A-VIS OF BLANK. 145 00:14:03.286 --> 00:14:07.715 MATTHEW S. SAMEL: I WILL REFER YOUR HONOR TO THE CASE OF STATE V. CHOICE 146 00:14:07.715 --> 00:14:13.257 WHICH IS REALLY INSTRUCTIVE AND WE CITED TO IN OUR BRIEF WHICH TALKS ABOUT THE STRATEGIC 147 00:14:13.257 --> 00:14:18.315 DECISION AND REASONS WHY THE DEFENDANT MAY OR MAY NOT REQUEST A CERTAIN LESSER INCLUDED OEVENTS 148 00:14:18.315 --> 00:14:25.190 AND ALSO SPECIFICALLY RELATES TO PASSION/PROVOCATION CAN STATE V. CHOICE AND 149 00:14:25.190 --> 00:14:28.738 TALKS ABOUT HOW IT SIGNIFICANTLY OPENS THE DOOR TO A LARGE AMOUNT OF RELEVANT EVIDENCE 150 00:14:28.738 --> 00:14:33.104 THAT WOULD NOT OTHERWISE HAVE BEEN RELEVANT IN THE CASE BUT FOR THIS BEING INJECTED AND 151 00:14:33.104 --> 00:14:38.922 IT TALKS ABOUT HOW THE DEFENDANT UNDERSTAND THAT A STRATEGIC DECISION TO NOT OPEN THE 152 00:14:38.922 --> 00:14:43.904 DOOR TO THIS ADDITIONAL RELEVANT EVIDENCE THAT IS EXTREMELY PREJUDICIAL TO HIM AND THAT 153 00:14:43.904 --> 00:14:48.752 IT REALLY IS ALL ABOUT FUNDAMENTAL FAIRNESS HERE AND DUE PROCESS AND THE DEFENDANT HAS 154 00:14:48.752 --> 00:14:53.491 A RIGHT TO CHOOSE HIS OWN TRIAL STRATEGY. IF ARN INSTRUCTION FROM THE JUDGE 155 00:14:53.491 --> 00:15:02.499 SO CLEARLY CUTS AGAINST HIS DEFENSE, I DON'T THINK IT'S FAIR TO HAVE IT THE GENERAL 156 00:15:02.499 --> 00:15:06.886 IMPORTANT OF JURY INSTRUCTIONS TRUMP A DEFENDANT'S RIGHT TO THAT TRIAL STRATEGY AND I WOULD 157 00:15:06.886 --> 00:15:12.093 STILL FURTHER ARGUE THAT THE EVIDENCE IN THIS CASE JUST SIMPLY DOES NOT INDICATE 158 00:15:12.093 --> 00:15:16.265 PASSION/PROVOCATION AS TO BE ARRIVED BY THE MAJORITY. JUSTICE MICHAEL 159 00:15:16.265 --> 00:15:20.147 NORIEGA: DIDN'T THE MAJORITY OF THE BLANK SUGGEST THAT IT WAS THE STATE THAT INTRODUCED 160 00:15:20.147 --> 00:15:25.107 THE THEORY IN ITS OPENING AND CLOSING AND TALKING ABOUT HOW ANGRY THE DEFENDANT WAS AN 161 00:15:25.107 --> 00:15:30.689 THE REPEATED CALLS TO GONZALEZ DURING THE COURSE OF THIS INCIDENT THAT IT IS ALMOST LIKE 162 00:15:30.689 --> 00:15:33.753 THE PROSECUTOR SUGGESTED IT. MATTHEW S. SAMEL: THE PROSECUTOR SUGGESTED 163 00:15:33.753 --> 00:15:39.480 THE DEFENDANT WAS ANGRY BUT I WOULD SUGGEST ANGRY OR RAGE IN THEIR COMMON DEFINITION ARE 164 00:15:39.480 --> 00:15:46.482 TOTALLY DIFFERENT CONCEPTS FROM WHAT IS ADEQUATE AND WHAT A REASONABLE PERSON WOULD FIND 165 00:15:46.482 --> 00:15:51.400 SO PROVOKING TO LOSE ALL CONTROL OF THEIR SEFLS. JUSTICE HOFFMAN: JUSTICE 166 00:15:51.400 --> 00:15:58.064 NORIEGA RAISES A VERY DIFFICULT POINT FOR ALL OF US. WHAT YOU'RE REALLY SAYING IS WE 167 00:15:58.064 --> 00:16:04.199 CAN USE THIS RAGE TO JUSTIFY MOTIVE. YOU CAN GET TO A POINT WITH THIS RAGE, BUT WE CAN'T 168 00:16:04.199 --> 00:16:10.060 GO A STEP FURTHER WITHOUT THE DEFENDANT FOR PASSION/PROVOCATION. YOU'RE 169 00:16:10.060 --> 00:16:15.755 TRYING TO SIT ON A VERY FINE LINE BY SAYING THERE WAS RAGE, RAGE PROVIDED NURD R MURDER. 170 00:16:15.755 --> 00:16:23.475 MURDER JUSTIFIED A GUILTY VERDICT, BUT DON'T GO ANY FURTHER THAN THAT AND THINK THAT THAT 171 00:16:23.475 --> 00:16:26.896 RAGE COULD HAVE MOVED INTO PASSION/PROVOCATION. MATTHEW S. SAMEL: WELL, 172 00:16:26.896 --> 00:16:32.783 AGAIN, THESE WERE ARGUMENTS OF THE PROSECUTOR -- JUSTICE WAINER APTER: WOULDN'T 173 00:16:32.783 --> 00:16:37.244 YOUR RESPONSE TO THAT BE THAT DEFENSE COULD HAVE REQUESTED A PASSION/PROVOCATION AND THEN 174 00:16:37.244 --> 00:16:43.121 IT IS A MUCH LESSER THRESHOLD. I THINK IT IS LOOKING AT THE EVIDENCE IN THE LIGHT MOST 175 00:16:43.121 --> 00:16:47.838 FAVORABLE TO THE DEFENDANT IF THERE IS ANY POSSIBLE WAY THE JURY CAN FINDS IT IT HAS TO 176 00:16:47.838 --> 00:16:54.223 BE GIVEN BUT HERE ITS A TOTALLY DIFFERENT ARGUMENT IF THE DEFENSE DID NOT REQUEST IT AND 177 00:16:54.223 --> 00:16:58.916 SAID NO LESSER INCLUDED SHOULD BE CHARGED AND NOW ON APPEAL THE DEFENSE IS SAYING ACTUALLY 178 00:16:58.916 --> 00:17:02.735 THIS IS WRONG WE SHOULD HAVE GOTTEN THIS CHARGE. MATTHEW S. SAMEL: THAT'S 179 00:17:02.735 --> 00:17:07.799 THE POINT. JUSTICE PATTERSON: AND THAT HIGHER STANDARD TAKES INTO ACCOUNT 180 00:17:07.799 --> 00:17:13.885 THAT IT MAY WOEL BE STRATEGIC FOR DEFENDANT FOR WHATEVER THEIR TRIAL THEORY IS TO STAY 181 00:17:13.885 --> 00:17:19.078 AWAY FROM PASSION/PROVOCATION, WHETHER IT'S IDENTIFICATION, THAT SOMEBODY ELSE DID IT, 182 00:17:19.078 --> 00:17:23.997 ALL THESE PARTIES GUILT, ALL THESE POSSIBLE DEFENSES THAT REALLY WOULD BE INCOMPATIBLE 183 00:17:23.997 --> 00:17:30.827 WITH PASSION/PROVOCATION. MATTHEW S. SAMEL: EXACTLY, LIKE AN ALIBI DEFENSE. 184 00:17:30.827 --> 00:17:37.117 JUSTICE HOFFMAN: WHETHER IT IS A STLAT TEEJ JIK DEFENSE OR NOT IS NOT RIL 185 00:17:37.117 --> 00:17:43.041 RELEVANT IF THE CHARGE IS REQUIRED IT SHOULD BE GIVEN REGARDLESS OF WHETHER THE DEFENSE 186 00:17:43.041 --> 00:17:45.869 COUNSEL WANTS IT OR NOT. MATTHEW S. SAMEL: I WOULD SUBMIT HIRE THAT THE 187 00:17:45.869 --> 00:17:50.236 EVIDENCE IN THIS CASE DID NOT INDICATE ADEQUATE PROVOCATION OR THAT THE DEFENDANT DID 188 00:17:50.236 --> 00:17:56.870 NOT HAVE SUFFICIENT TIME TO COOL OFF. JUSTICE HOFFMAN: IT STOPS AT MOTIVE 189 00:17:56.870 --> 00:18:00.690 IT DOESN'T GO ANY FURTHER. MATTHEW S. SAMEL: MURDER IS NOT AN ESSENTIAL 190 00:18:00.690 --> 00:18:06.920 ELEMENT TO MURDER. IT IS NOT REQUIRED. THERE NEEDED TO BE A CONNECTION BETWEEN GONZALEZ 191 00:18:06.920 --> 00:18:12.307 AND OWNS BECAUSE M.L. TELLS US THINK NEVER KNEW EACH OTHER THEY NEVER MET EACH OTHER. 192 00:18:12.307 --> 00:18:17.405 THE DEFENDANT HAD NO REASON TO BE MADZ AT GONZALEZ, HE SAID EVEN AFTER HE LEAVES AFTER 193 00:18:17.405 --> 00:18:22.217 THE DOMESTIC VIOLENCE INCIDENT HE WAS NOT ANGRY ABOUT GONZALEZ HE WAS ANGRY ABOUT THE 194 00:18:22.217 --> 00:18:26.514 PHONE CALL NAMED DONALD. SO THERE NEEDS TO BE THIS CONNECTION TO SHOW WHY THE DEFENDANT 195 00:18:26.514 --> 00:18:30.464 WOULD HAVE DONE WHAT HE DID. JUSTICE PIERRE-LOUIS: YOUR PRIMARY ARGUMENT 196 00:18:30.464 --> 00:18:35.589 IS THAT THE DEFENDANT DIS NOT INDICATE THAT PASSION/PROVOCATION SHUFSH GIVEN AS A JURY 197 00:18:35.589 --> 00:18:39.957 INSTRUCTION SO IT DOESN'T MATTER IF DEFENDANT'S THEORY OF THE CASE THE DEFENSE WAS ONE 198 00:18:39.957 --> 00:18:44.784 THING OR ANOTHER OR WAS INCOMPATIBLE. YOUR ARGUMENT IS IT WASN'T CLEARLY INDICATED, THE 199 00:18:44.784 --> 00:18:48.148 DEFENDANT DIDN'T ASK FOR IT. MATTHEW S. SAMEL: YES, YOUR HONOR, THAT'S 200 00:18:48.148 --> 00:18:52.070 MY MAIN ARGUMENT. IT'S NOT CLEARLY INDICATED BY THE EVIDENCE. JUSTICE WAINER 201 00:18:52.070 --> 00:18:58.158 APTER: IS POWELL LOW A CASE WHERE, WAS POWELL THE SAME WHERE IT HAD TO BE CLEARLY JUMPING 202 00:18:58.158 --> 00:19:03.688 OFFER THE PAGE, CLEARLY INDICATED BECAUSE THE DEFENDANT INTENTIONALLY SAID NO LESSER 203 00:19:03.688 --> 00:19:06.964 INCLUDED OFFENSE CHARGES PLEASE. MATTHEW S. SAMEL: YOUR HONOR, FRANKLY, I 204 00:19:06.964 --> 00:19:11.816 AM NOT KNOWLEDGEABLE ON THE ANSWER TO THAT BECAUSE I KNOW THAT STATE V. CHOICE I THINK 205 00:19:11.816 --> 00:19:17.091 CAME AFTER THAT AND KIND OF DIRECTED US AWAY FROM POWELL, ESSENTIALLY AND I BELIEVE STATE 206 00:19:17.091 --> 00:19:23.978 V. CHOICE WAS THE CLEARLY INDICATED STANDARD THACHS CONSIDERED AND IT WAS FOUND NOT TO BE 207 00:19:23.978 --> 00:19:27.126 CLEARLY INDICATED BY THE EVIDENCE AND NOT PLAIN ERROR. JUSTICE MICHAEL NORIEGA: 208 00:19:27.126 --> 00:19:33.371 YOU RAISE AS AN ARGUMENT THAT THE DEFENSE'S POSTURING THE CASE VIEWED THE 209 00:19:33.371 --> 00:19:36.888 PASSION/PROVOCATION CHARGE INCONSISTENT. DOES THE COURT HAVE TO TAKE THAT INTO 210 00:19:36.888 --> 00:19:40.966 CONSIDERATION OR CAN THE TRIAL COURT SAY REGARDLESS OF THE DEFENSE YOU'VE BEEN MOUNTED 211 00:19:40.966 --> 00:19:45.586 THIS IS CLEARLY INDICATED TO KNEE I AM GOING TO IMPOSE THIS JURY INSTRUCTION FOR THE JURY 212 00:19:45.586 --> 00:19:48.501 TO CONSIDER. MATTHEW S. SAMEL: IF IT'S CLEARLY INDICATED BY THE EVIDENCE 213 00:19:48.501 --> 00:19:53.096 THE LAW IS CLEAR THE TRIAL JUDGE HAAS AN INDEPENDENT OBJECTION TO INSTRUCT THE JURY ON 214 00:19:53.096 --> 00:19:58.283 THAT CHARGE BUT HERE NEITHER THE STATE NOR THE DEFENDANT NOR THE TRIAL JUDGE WHO SALT 215 00:19:58.283 --> 00:20:03.199 THROUGH THE EVIDENCE SAW ALL THE TRIAL TESTIMONY IN THE CASE THOUGHT THAT WAS AN ISSUE. 216 00:20:03.199 --> 00:20:07.934 SO WHEN THE DEFENDANT SAID HE DID NOT WANT ANY LESSER INCLUDED OFFENSES, IT 217 00:20:07.934 --> 00:20:15.705 WAS CLEAR FOR THE TRIAL JUDGE TO MOVE ON AT THAT POINT AND NOT GO CRAZY ANALYZINGS THE 218 00:20:15.705 --> 00:20:20.613 2C:TO SO WHAT POSSIBLE CASES COULD APPLY. JUSTICE PATTERSON: HE AFFIRMATIVELY 219 00:20:20.613 --> 00:20:24.988 SAID THAT. MATTHEW S. SAMEL: YES. JUSTICE PATTERSON: THAT'S 220 00:20:24.988 --> 00:20:31.067 A LITTLE BIT BEYOND THE MORE TYPICAL CASE WHERE SIMPLY NOBODY EVER BRINGS IT UP AT ANY 221 00:20:31.067 --> 00:20:37.444 POINT. MATTHEW S. SAMEL: RIGHT. AND IN REVIEWING CASE LAW, I MEAN, ON 222 00:20:37.444 --> 00:20:41.730 PASSION/PROVOCATION -- ON APPELLATE REVIEW, YOU TYPICALLY ALWAYS HAVE A DEFENDANT TESTIFYING 223 00:20:41.730 --> 00:20:46.686 AS TO WHAT HAPPENED THEIR VERSION OF EVENTS, HOW IT IMPACTED THEM OR A SUBSTANTIAL AMOUNT 224 00:20:46.686 --> 00:20:52.535 OF FACT EYEWITNESSES THAT CAN PROVIDE CONTEXT FOR THIS SUPPOSED PROVOKING SITUATION. 225 00:20:52.535 --> 00:20:57.889 HERE WE HAD ONE WITNESS WHO COULD TELL US WHAT HAPPENED, M.L. AND SHE TELLS US IT HAD 226 00:20:57.889 --> 00:21:02.782 NOTHING TO DO WITH THE GONDZ. JUSTICE PIERRE-LOUIS: IT SEEMED TO BE THE 227 00:21:02.782 --> 00:21:07.295 DEFENSE THEORY THROUGH QUESTIONING THAT SHE WASN'T BEING TRUTHFUL ABOUT THIS DONALD 228 00:21:07.295 --> 00:21:12.293 PERSON, SHE TALKS ABOUT SHE HAD MET HIM SEVERAL MONTHS PRIOR AT A HALFWAY HOUSE AND ALL 229 00:21:12.293 --> 00:21:16.662 THIS OTHER INFORMATION. I AM JUST TRYING TO FIGURE OUT WHERE THE DISCONNECT IS BETWEEN 230 00:21:16.662 --> 00:21:22.847 HER SAYING THAT WHAT DIDN'T FIT WELL WITH DEFENDANT WAS THE CALL FROM DONALD AND THE 231 00:21:22.847 --> 00:21:29.127 APPELLATE DIVISION FINDING THAT IT WAS BECAUSE OF GONZALEZ. MATTHEW S. SAMEL: 232 00:21:29.127 --> 00:21:35.495 ACTUALLY, THE DEFENSE TOOK THAT REFERENCE TO DONALD AND THE ARGUMENT WAS OVER DONALD AND 233 00:21:35.495 --> 00:21:41.130 THEY RAN WITH THAT. THEY USED THAT AS THEIR DEVENLGS THEY SAID THIS DOMESTIC VIOLENCE 234 00:21:41.130 --> 00:21:47.066 HAD NOTHING TO DO WITH GONZALEZ BEING MURDERED. THAT WAS WHAT THEY WERE PUTTING FORWARD 235 00:21:47.066 --> 00:21:53.311 DURING TRIAL THAT MICHAEL OWENS HAD NO REASON TO KILL THIS PERSON, IN FACT THEY REQUESTED, 236 00:21:53.311 --> 00:21:57.492 EXPRESSLY A THIRD PARTY GUILT INSTRUCTION WHICH REQUIRES EVIDENCE IN THE RECORD THAT SOME 237 00:21:57.492 --> 00:22:01.212 WIN OTHER THAN THE DEFENDANT ACTUALLY COMMITTED THE CRIME. THE STATE HAD TO 238 00:22:01.212 --> 00:22:08.382 CONFRONT M.L. ABOUT INCONSISTENCIES AN HER PRIOR RECORD TO SHOW THAT REALLY THIS WASN'T 239 00:22:08.382 --> 00:22:14.907 ABOUT DONALD, IT WAS ABOUT TEXT MESSAGES THAT THE DEFENDANT SAW ON HER PHONE, BUT, AGAIN, 240 00:22:14.907 --> 00:22:19.085 HE DIDN'T REFERENCE ANY SPECIFIC TEXT MESSAGE OR GROUP OF TEXT MESSAGES THAT THE DEFENDANT 241 00:22:19.085 --> 00:22:23.247 SAW BECAUSE WE DIDN'T KNOW THAT INFORMATION. MM DIDN'T TELL US THAT INFORMATION SO WE 242 00:22:23.247 --> 00:22:30.483 CAN'T FIND THAT PROVOCATION IS CLEARLY INDICATED BY THE RECORD SINCE WE DON'T KNOW THE 243 00:22:30.483 --> 00:22:36.732 TRUE SOURCE OF THE PROVOKING MESSAGE. JUSTICE HOFFMAN: A PARTNER OF YOURS 244 00:22:36.732 --> 00:22:45.110 HAS BEEN SUPPLIED HEROIN COULD BLANK PASSION/PROVOCATION, RIGHT. 245 00:22:45.110 --> 00:22:48.832 MATTHEW S. SAMEL: I WON'T TAKE A STEADFAST POSITION ON THAT YOUR HONOR, BUT I WILL SAY 246 00:22:48.832 --> 00:22:53.262 I DON'T BELIEVE A REASONABLE REACTION TO DISCOVERING THAT INFORMATION IS TO GO THEN 247 00:22:53.262 --> 00:22:59.123 KILL YOUR PARTNER'S DRUG DEALER, RIGHT. NOW WE'RE TOLD THAT ADDICTION IS A 248 00:22:59.123 --> 00:23:03.288 DISEASE AND IT'S TO BE TREATED WITH COMPASSION AN CARE TO HELP THAT PERSON IMPROVE THEMSELVES 249 00:23:03.288 --> 00:23:10.144 AND GET BETTER AND GET HEALTHY, RIGHT? WE'RE NOT SUPPOSED TO BE OVERLY PUNITIVE 250 00:23:10.144 --> 00:23:18.808 WITH THAT PERSON. I AM SAYING THERE IS A LOT OF OTHER REASONABLE REACTIONS THAT ONE WOULD 251 00:23:18.808 --> 00:23:23.558 HAVE AT DISCOVERING THAT INFORMATION, RIGHT, YOU WOULD HAVE AN INTERVENTION, YOU WOULD 252 00:23:23.558 --> 00:23:26.860 SPEAK TO THEM, GET A THERAPIST, A COUNSELOR. JUSTICE PIERRE-LOUIS: AND 253 00:23:26.860 --> 00:23:33.527 LIKE YOU SAID, THE TEXT MESSAGES THAT WERE SOENT FROM DEFENDANT TO M.L. AFTER THE MURDER 254 00:23:33.527 --> 00:23:38.176 SUGGEST THERE MAY HAVE BEEN SOME OTHER REASON HE WAS UPSET ABOUT FINDING OUT SHE WAS GETTING 255 00:23:38.176 --> 00:23:43.773 DRUGS FROM GONZALEZ BECAUSE HE SAYS YOU MADE ME LOOK BAD BY DOING DOPE BEHIND MY BACK 256 00:23:43.773 --> 00:23:50.134 AND I WISH IT WAS COKE. MATTHEW S. SAMEL: CORRECT. SO MAYBE HE WAS CONCERNED 257 00:23:50.134 --> 00:23:55.672 WITH HER HEALTH BUT HE ALSO SAID HE'S CONCERNED ABOUT HIS OWN PUBLIC IMAGE THAT SHE'S 258 00:23:55.672 --> 00:24:01.101 MAKING HIM LOOK BAD AND FRANKLY, THOSE TEXT MESSAGES ARE REALLY THE ONLY VIEW INSIDE THE 259 00:24:01.101 --> 00:24:05.540 DEFENDANT'S HEAD THAT WE GET IN THIS ENTIRE CASE AND IT'S A FEW TEXT MESSAGES THAT OCCUR 260 00:24:05.540 --> 00:24:10.384 SEVERAL DAYS AFTER THE MURDER IN A TIME WHEN THE DEFENDANT IS TRYING TO GET M.L. BACK 261 00:24:10.384 --> 00:24:18.648 ON HIS SIDE TO GO INTO THE POLICE STATION AND TO DROP THE DOMESTIC VIOLENCE CHARGES AN 262 00:24:18.648 --> 00:24:23.140 M.L. TELLS US THIS IN HER TESTIMONY AT TRIAL THAT SHE WENT TO THE AMERICA HOMICIDE TASK 263 00:24:23.140 --> 00:24:27.538 FORCE WITH THE SPECIFIC PURPOSE OF DROPPING THE DOMESTIC VIOLENCE CHARGES AN DROPPING 264 00:24:27.538 --> 00:24:34.534 THE NO CONTACT ORDER AND THAT'S ULTDLY HOW SHE IS INTERVIEWED AND WHERE DONALD FIRST COMES 265 00:24:34.534 --> 00:24:41.266 THROUGH. WITH REGARD TO SEVERANCE, I THINK, YOUR HONOR, THAT THE TRIAL COURT 266 00:24:41.266 --> 00:24:47.960 PROPERLY DECIDED THE SEVERANCE ISSUE. NOW, I WOULD PUT A LITTLE DIFFERENT 267 00:24:47.960 --> 00:24:53.312 SPIN ON IT. I TRULY BELIEVE THAT THE DOMESTIC VIOLENCE EVIDENCE IS ACTUALLY INTRINSIC 268 00:24:53.312 --> 00:25:01.746 OF THE MURDER IN THIS CASE. GIVEN THE CLOSE PROXIMITY IN TIME AND WHEN I SAY CLOSE 269 00:25:01.746 --> 00:25:06.070 PROXIMITY I DON'T MEAN THAT TO BE THAT THERE WAS AN ADEQUATE COOLING OFF PERIOD FOR THE 270 00:25:06.070 --> 00:25:10.152 DEFENDANT OR A REASONABLE PERSON IN THE DEFENDANT'S SHOES BUT THIS WAS A CONTINUING 271 00:25:10.152 --> 00:25:14.175 COURSE OF CONDUCT THAT FLOWED FROM ONE ANOTHER. FURTHERMORE THE DEFENDANT DURING 272 00:25:14.175 --> 00:25:20.787 THE DOMESTIC VIOLENCE INCIDENT TOOK POSITION OF M.L.'S PHONE AND HER CAR WHICH WERE DIRECT 273 00:25:20.787 --> 00:25:25.283 IMPLEMENTS THAT WERE USED TO COMMIT THE MURDER OF GONZALEZ SO I WOULD SUBMIT THAT THE 274 00:25:25.283 --> 00:25:31.724 D V INCIDENT WAS INTRINSIC TO THE MURDER AND APPROPRIATE ANALYSIS IS NOT THE ANALYSIS 275 00:25:31.724 --> 00:25:36.207 THAT SHUB UNDERTAKEN. NEVERTHELESS, I THINK THAT THE DECISION AND THE REASONING 276 00:25:36.207 --> 00:25:40.887 THAT THE TRIAL JUDGE PUT FORWARD IN HER MOTION TO SUPPRESS THE DECISION WAS PROPERLY DONE 277 00:25:40.887 --> 00:25:52.419 AND DOES NOT REQUIRE THAT DECISION TO BE DIS STISH STUSHED AND R DISTURBED AND RELATED 278 00:25:52.419 --> 00:26:01.210 WITH REGARD TO THE SANITIZATION OF THE STRANG GU LAGS STRANGULATION IN THIS CASE, IT IS 279 00:26:01.210 --> 00:26:04.891 CLEAR THAT THE MAJORITY DIDN'T UNDERSTAND THE STATUTE THAT THE DEFENDANT WAS PRESENT, 280 00:26:04.891 --> 00:26:08.229 THAT REQUIRED THE STATE TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT KNOWING 281 00:26:08.229 --> 00:26:17.710 LY RESTRICTED THE BLOOD FLOW OR BREATHING OF M.L. BY OBSTRUCTING HER DARK DASH OBSTRUCTED 282 00:26:17.710 --> 00:26:24.421 HER BLOOD FLOW BY PUTTING PRESSURE ON THE THROAT OR NECK AND THAT CAUSED INJURY OR HE 283 00:26:24.421 --> 00:26:30.527 ATTEMPTED TO CAUSE INJURY. SO BY SAN NET TIEZING M.L.'S TESTIMONY ABOUT BEING 284 00:26:30.527 --> 00:26:34.391 STRANGLED BY THE DEFENDANT IT PRACTICALLY AND ABSOLUTELY WOULD HAVE PREVENTED THE STATE 285 00:26:34.391 --> 00:26:37.671 FROM MEETING IT'S BURDEN OF PROOF ON THAT CHARGE. JUSTICE MICHAEL NORIEGA: 286 00:26:37.671 --> 00:26:43.348 HAVE YOU THE ISSUE OF PREJUDICE WITH REGARD TO THE TWO DIFFERENT VICTIMS, TWO DIFFERENT 287 00:26:43.348 --> 00:26:50.460 INCIDENTS, TWO DIFFERENT SCENARIOS WHERE ONE DEMONSTRATES A TENDENCY OF VIOLENCE AND THE 288 00:26:50.460 --> 00:26:57.035 SECOND ASSISTS THE STATE IN PROVING THEIR CASE WHERE IT COULD HAVE BEEN DEALT WITH IN 289 00:26:57.035 --> 00:27:02.123 TWO SEPARATE TRIALS RELATIVELY EASILY. MATTHEW S. SAMEL: THE EVIDENCE OF THE 290 00:27:02.123 --> 00:27:05.505 DOMESTIC VIOLENCE ASSAULT WAS INTRINSIC TO THE MURDER. JUSTICE MICHAEL NORIEGA: 291 00:27:05.505 --> 00:27:09.104 IT COULD HAVE BEEN DONE DIFFERENTLY. IT COULD HAVE BEEN SAID THERE WAS A FIGHT, TOOK 292 00:27:09.104 --> 00:27:14.028 THE PHONE, TOOK THE CAR, THERE IS A RELATIONSHIP. THE DETAILS OF THAT PARTICULAR ASSAULT 293 00:27:14.028 --> 00:27:20.963 HAD TO BE IN THE CASE BUT I'M THINKING IT DOESN'T HAVE TO BE ABSOLUTELY NECESSARY FOR 294 00:27:20.963 --> 00:27:24.673 THE STATE TO BE ABLE TO PROVE ITS CASE. MATTHEW S. SAMEL: THIS WAS AN INDICTMENT 295 00:27:24.673 --> 00:27:30.089 JOINED FROM THE OUTSET BECAUSE OF THE RELATION IN THE INCIDENTS AND THE STATE HAS THE 296 00:27:30.089 --> 00:27:34.658 BURDEN OF PROVING THAT SEVERANCE WAS APPROPRIATE AND THAT WAS NOT FOUND AND OF COURSE 297 00:27:34.658 --> 00:27:38.960 ALL EVIDENCE IS PREJUDICIAL THAT IS TRIESED AGAINST THE DEFENDANT BUT THIS WAS NOT THE 298 00:27:38.960 --> 00:27:45.920 TYPE OF EVIDENCE THAT SHOWED PREJUDICIAL TOWARDS THE DEFENDANT'S CHANCE OF ACQUITTAL ON 299 00:27:45.920 --> 00:27:51.474 THE MURDER THAT IT HAD TO BE IN SOME WAY SANITIZED OR SEVERED FROM THE HOMICIDE. IT 300 00:27:51.474 --> 00:27:56.091 JUST WASN'T THAT. JUSTICE HOFFMAN: COUNSEL, I WANT TO CLARIFY ONE FACT I 301 00:27:56.091 --> 00:28:02.762 MAY HAVE MISUNDERSTOOD. WHEN THE DEFENDANT WAS DRIVING TO SEE GONZALEZ, THE 302 00:28:02.762 --> 00:28:07.832 40-MINUTE DRIVE HE SPEAKS TO HIM A COUPLE OF TIMES ON THE PHONE, RIGHT? I 303 00:28:07.832 --> 00:28:12.230 THINK YOU SAID BEFORE HE SPOKE TO HIM AND THEN HE CIRCLED THE HOUSE. DID HE 304 00:28:12.230 --> 00:28:17.181 SPEAK ON THE PHONE TO HIM OR IN PERSON TO HIM AND THEN HE CIRCLED THE HOUSE. 305 00:28:17.181 --> 00:28:19.777 MATTHEW S. SAMEL: YOUR HONOR, THERE WERE CALL RECORDS THAT WERE INTRODUCED AT TRIAL AND 306 00:28:19.777 --> 00:28:23.853 SHOWN TO THE JURY THAT SHOWED THAT THERE WERE A NUMBER OF PHONE CALLS THAT OCCURRED BETWEEN 307 00:28:23.853 --> 00:28:32.023 M.L.'S PHONE. I BELIEVE IT WAS NINE CALLS. THERE WAS A COUPLE IN WHICH THEY SPOKE. 308 00:28:32.023 --> 00:28:38.051 AND THERE WAS ACTUALLY AN IN-PERSON MEETING WHEN THE DEFENDANT ARRIVES ON SOUTH BROAD 309 00:28:38.051 --> 00:28:44.459 STREET APPROXIMATELY 2 MINUTES AFTER LUIS GONZALEZ IS DROPPED OFF IN FRONT OF HIS HOUSE 310 00:28:44.459 --> 00:28:51.509 THE DEFENDANT PULSE UP IN THE SUSPECT'S VEHICLE IN FRONT OF LOOUZ GONZALEZ HOUSE AND LOOUZ 311 00:28:51.509 --> 00:28:59.382 GONZALEZ IS SEEN CON VENSING WITH THE OCCUPANT OF THE CAR. JUSTICE HOFFMAN: 312 00:28:59.382 --> 00:29:02.998 IS THAT WHEN THE SDIPT OCCURS. MATTHEW S. SAMEL: THAT IS WHEN THE DEFENDANT 313 00:29:02.998 --> 00:29:08.616 CIRCLES AROUND THE BLOCK FOR AN ADDITIONAL 8 MINUTES HE GOES INSIDE HIS HOUSE, 8 MINUTES 314 00:29:08.616 --> 00:29:13.893 LATER WALKS BACK TO THAT SUSPECT VEHICLE AND IS SHOT TWICE AND KILLED SO I WOULD SUBMIT 315 00:29:13.893 --> 00:29:19.743 RIGHT THERE A PERSON WHO HAS LOST ALL SELF CONTROL IS NOT GOING TO WAIT TO ACT IN THAT 316 00:29:19.743 --> 00:29:26.119 SITUATION; THAT ADDITIONAL 8 MINUTES, IF THE PROCEEDING -- IF THE PROCEEDING 30 PLUS 317 00:29:26.119 --> 00:29:31.109 MINUTES WAS NOT ENOUGH THAT ADDITIONAL 8 MINUTES WAS AN ADDITIONAL COOLING OFF PERIODS. 318 00:29:31.109 --> 00:29:33.482 CHIEF JUSTICE RABNER: KI TOLL US WHAT HAPPENED WITH RESPECT TO THE DEFENDANT 319 00:29:33.482 --> 00:29:38.625 PICKING UP A PASSENGER AND STOPPING IN THE APARTMENT COMPLEX. MATTHEW S. 320 00:29:38.625 --> 00:29:47.310 SAMEL: WE CAN ONLY SPEC LATE SPEKTD, DONE NEL SPECULATE, EXIT FROM THE VEHICLE YOU JUST 321 00:29:47.310 --> 00:29:50.845 KNOW THAT THE CAR LEAVES APPROXIMATELY FIVE MINUTES LATER SO I DON'T WANT TO SPECULATE 322 00:29:50.845 --> 00:29:55.465 ABOUT WHAT HAPPENED. I BELIEVE THINGS BUT I DON'T WANT TO SPECULATE TO IRNSS. 323 00:29:55.465 --> 00:29:58.486 NOW -- AND WHAT WAS THE FIRST PART OF THAT. CHIEF JUSTICE RABNER: THE PASSENGER. 324 00:29:58.486 --> 00:30:02.917 MATTHEW S. SAMEL: THE PAST JER. SO I KNOW IN THE STATE'S BRIEF 325 00:30:02.917 --> 00:30:06.961 WE DID ARGUE THAT THE EVIDENCE REASONABLY INDICATED THAT THE DEFENDANT PICKED UP A 326 00:30:06.961 --> 00:30:11.797 PASSENGER. IN REVIEWING BACK THROUGH THE TRIAL RECORD M.L. MENTIONS THAT SHE 327 00:30:11.797 --> 00:30:17.217 SAW SOMEONE ELSE OUTSIDE OF THE HOUSE BUT SHE DOESN'T CLEARLY SAY THIS IS THE PERSON WHO 328 00:30:17.217 --> 00:30:21.246 THE DEFENDANT GOT IN HER CAR WITH AND LEFT HER HOUSE. MAYBE THERE WAS ANOTHER 329 00:30:21.246 --> 00:30:26.652 PERSON THERE WHILE ALL THIS DOMESTIC VIOLENCE, ASSAULT AND ARGUMENT WAS OCCURRING. WE 330 00:30:26.652 --> 00:30:30.556 REALLY DON'T EVEN KNOW. JUSTICE PATTERSON: IS DONE NELLY HOMES CONNECTED 331 00:30:30.556 --> 00:30:36.155 WITH ANYONE ABOUT WHOM THERE WAS TESTIMONY AT TRIAL. MATTHEW S. SAMEL: THERE 332 00:30:36.155 --> 00:30:40.710 WAS TESTIMONY THAT THE DEFENDANT'S MOM LIVED IN DONE NELLY HOMES AND HAD LIVED THERE FOR 333 00:30:40.710 --> 00:30:48.348 A SUBSTANTIAL PERIOD OF TIME AND IN FACT THE CHEVY MALIBU, M.L.'S CHEVY MALBU WAS 334 00:30:48.348 --> 00:30:53.150 RECOVERED BY HER IN DONE NELLY HOMES THE DAY AFTER THE MURDER SO THAT'S WHERE THE CAR WAS 335 00:30:53.150 --> 00:30:56.643 ULTIMATELY LEFT AND RECOVERED BY M.L. CHIEF JUSTICE RABNER: JUSTICE 336 00:30:56.643 --> 00:31:00.711 HOFFMAN: TO CHIEF JUSTICE'S QUESTION WE DON'T FLOW WHETHER THE DEFENDANT HAD A PASSENGER 337 00:31:00.711 --> 00:31:04.024 IN THE CAR WITH HIM OR NOT. MATTHEW S. SAMEL: MAYBE I MISUNDERSTOOD YOU. 338 00:31:04.024 --> 00:31:08.265 WE KNOW THERE WAS A PASSENGER IN THE CAR. THAT WAS A LOT OF THE STATE'S -- THAT WAS THE 339 00:31:08.265 --> 00:31:13.312 WAY THE STATE PROVED THAT THIS WAS THE SAME VEHICLE THAT WE WERE SEEING IN ALL THESE 340 00:31:13.312 --> 00:31:18.241 DIFFERENT SHOTS BECAUSE ONCE THE VEHICLE ARRIVES ON SOUTH BROAD STREET YOU REALLY DON'T 341 00:31:18.241 --> 00:31:23.881 GET A CLEAR IMAGE OF THE DRIVER YOU CAN ONLY SEE THE WHITE HAT WHITE HAT WHITE HAT WE 342 00:31:23.881 --> 00:31:27.852 STRESSED THAT THROUGHOUT THE CASE BECAUSE THAT WAS THE COMMON THEME BETWEEN THESE DIFFERENT 343 00:31:27.852 --> 00:31:31.733 VEHICLES WHERE THE DEFENSE WAS ARGUING WE DON'T KNOW THIS WAS THE SAME VEHICLE, HOW CAN 344 00:31:31.733 --> 00:31:38.078 YOU SAY THIS IS M.L.'S CHEVY MALIBU SO THE WHITE HAT PERSON WAS A BIG PIECE OF THIS CASE 345 00:31:38.078 --> 00:31:44.189 AND THAT IS WHY THE DEFENSE WAS WHAT IT WAS. THE IDENTIFICATION, THE VIDEO WAS THAN CLEAR 346 00:31:44.189 --> 00:31:49.453 AT THE SCENE OF THE MURDER AS TO WHAT WAS AT THE SCENE OF THE MURDER AND WHO DID THIS. 347 00:31:49.453 --> 00:31:54.360 IT WAS TYING THINGS TOGETHER AND MAKING REASONABLE INFERENCES. JUSTICE 348 00:31:54.360 --> 00:32:00.625 HOFFMAN: THAT WAS DEFENDANT'S PRIMARY CASE AT TRIAL, RIGHT? MATTHEW S. SAMEL: 349 00:32:00.625 --> 00:32:04.056 YES AND HE RAISED THE THIRD PARTY GUILT DECHLS, AS WELL. CHIEF JUSTICE RABNER: 350 00:32:04.056 --> 00:32:07.343 OTHER QUESTIONS, ANYONE? ANYTHING YOU WOULD LIKE TO AT AT THIS POINT, COUNSEL? 351 00:32:07.343 --> 00:32:09.268 MICHAEL AMANTIA APPEARING ON BEHALF OF. MATTHEW S. SAMEL: NOT AT THIS TIME, 352 00:32:09.268 --> 00:32:13.542 YOUR HONORS. THANK YOU. CHIEF JUSTICE RABNER: THANK YOU, MS. 353 00:32:13.542 --> 00:32:35.094 JUSTUS. LESLIE-ANN M. JUSTUS: GOOD AFTERNOON, MAY IT PLEASE THE COURT. 354 00:32:35.094 --> 00:32:40.727 THE ATTORNEY GENERAL'S POSITION IN THIS MATTER IS THAT THE MAJORITY OPINION 355 00:32:40.727 --> 00:32:48.664 SHOULD BE REVERSED BASED ON THE WELL-REASONED DISSENT OF JUDGE GILSON FOR FOUR PRIMARY 356 00:32:48.664 --> 00:32:52.607 REASONS. THE FIRST REASON I WOULD LIKE TO DISCUSS FIRST IS ONE OF THE QUESTIONS 357 00:32:52.607 --> 00:32:58.580 THAT WAS ADDRESSED TO MY COLLEAGUE WHICH IS WHAT IS THE CASE LAW AND WHAT IS THE COURT 358 00:32:58.580 --> 00:33:06.172 RULES REGARDING WHEN THE JUDGE CEASE THAT THERE ARE FACTS IN THE RECORD AND FOR WHICH 359 00:33:06.172 --> 00:33:13.364 THE JUDGE HAAS A DUTY TO INSTRUCT THE JURY ON A LESSER INCLUDED OFFENSE. NOW, 360 00:33:13.364 --> 00:33:19.916 WE KNOW FROM CHOICE AND POWELL THAT IF THERE ARE FACTS IN THE RECORD THAT WOULD SUPPORT 361 00:33:19.916 --> 00:33:27.728 A GIVING OF A LESSER INCLUDED OFFENSE, THE JUDGE SHOULD DO SO. HOWEVER WE NEEDED TO LOOK 362 00:33:27.728 --> 00:33:36.584 TO NOT CHOICE OR POUL, BUT UPDATED CASE LAW SUCH AS GARRON AND R.T. IT IS A GENERAL RULE 363 00:33:36.584 --> 00:33:42.323 THAT GOES BACK IN THE RECORD THAT SUPPORTS A LESSER INCLUDED OFFENSE A JUDGE SHOULD 364 00:33:42.323 --> 00:33:47.417 INSTRUCT THE JURY. HOWEVER, THERE IS AN EXCEPTION AND GARRON DISCUSSES IT AS WELL 365 00:33:47.417 --> 00:33:54.273 AS R.T. IN GARRON, IT SAYS THAT THE LESSER INCLUDED OFFENSE SHOULD NOT BE GIVEN 366 00:33:54.273 --> 00:34:00.441 IF IT WOULD BE SO UN ANTICIPATED BY EITHER PARTY AS TO CAUSE COMPLETE SURPRISE OR SO 367 00:34:00.441 --> 00:34:07.952 INCONSISTENT WITH THE DEFENSE AS TO UNDER MINE THE FAIRNESS OF THE DECEDENT. IF 368 00:34:07.952 --> 00:34:12.273 THAT IS THE CASE THE TRIAL COURT MAY DEPART FROM THE GENERAL RULE AND THIS IS STATE V. 369 00:34:12.273 --> 00:34:27.095 GARRON AT 177 N.J. AT 182/81. AND THEN DEVELOPING THAT THEORY IS OR THAT 370 00:34:27.095 --> 00:34:38.527 LAW IS R.T. AND IN R.T., IN THE CONCURRING OPINION, JUST LONG SAYS JUSTICE LONG SAYS IT 371 00:34:38.527 --> 00:34:43.070 IS ONE THING TO CHARGE THE JURY BASED ON FACTS THAT ARE IN THE RECORD BUT THAT'S NOT THE 372 00:34:43.070 --> 00:34:54.201 END OF THE STORY AND IT SAYS AT PAGE -- IT'S 205 N.J. AT 510 IT SAYS EVEN IF THERE IS 373 00:34:54.201 --> 00:34:59.961 EVIDENCE IN THE RECORD TO SUPPORT A CHARGE, ADDITIONAL FACTORS REQUIRE ANALYSIS. THOSE 374 00:34:59.961 --> 00:35:05.770 FACTORS INCLUDE WHETHER COUNSEL IS SURPRISED, HOW THE CASE WAS TRIED, WHETHER THE DEFENSE 375 00:35:05.770 --> 00:35:11.480 IS INCOMPATIBLE WITH THE DEFENDANT'S POSITION AT TRIAL AND THAT DEFENSE MEANS LESSER INCLUDED 376 00:35:11.480 --> 00:35:16.164 OR WHETHER THE INSTRUCTIONS WOULD PREJUDICE THE DEFENSE IN SOME WAY SUCH AS TO PREJUDICE 377 00:35:16.164 --> 00:35:20.435 THE DEFENSE'S ABT TO HAVE A FAIR TRIAL. SO ONE OF THE POINTS I WOULD LIKE 378 00:35:20.435 --> 00:35:24.974 TO MAKE IS THE FACT THAT THE MAJORITY HERE FAILED TO APPRECIATE THAT THIS CHARGE WOULD HAVE 379 00:35:24.974 --> 00:35:31.144 FORCED DEFENSE COUNSEL TO INCORPORATE DEFENSES THAT PRESUPPOSE THE VERY FACTS OF HIS DEFENSE 380 00:35:31.144 --> 00:35:36.281 THAT HIS DEFENSE CONTESTED, THE DEFENDANT'S PRESENCE AT THE SCENE, AT THE MURDER SCENE. 381 00:35:36.281 --> 00:35:42.596 APPELLATE ANALYSIS OF TRIAL JUDGE'S DUTY MUST BE SEASONED BY A DEGREE OF 382 00:35:42.596 --> 00:35:50.104 DEFERENCE TO DEFENSE COUNSEL'S STRATEGIC DECISIONS TO GARNER AN ACQUITTAL. THE 383 00:35:50.104 --> 00:35:54.316 PASSION/PROVOCATION CHARGE HERE ABOVE DESTROYED THE CREDIBILITY AND COHERENCE OF DEFENDANT 384 00:35:54.316 --> 00:35:59.157 'S CLAIM OF REASONABLE DOUBT. THE OTHER POINTS, THREE POINTS THAT I WOULD 385 00:35:59.157 --> 00:36:04.579 LIKE TO MAKE ARE FIRST, THE PARTIES CLOSEST TO THE TRIAL EASE ADJUDICATION HERE. 386 00:36:04.579 --> 00:36:08.433 JUSTICE PATTERSON: BEFORE YOU MOVE OFF THAT, WHAT IS YOUR VIEW AS TO THE CONTINUED VIABILITY 387 00:36:08.433 --> 00:36:16.177 OF POWELL? LESLIE-ANN M. JUSTUS: I THINK POWELL HAS BEEN RESTRICTED AND 388 00:36:16.177 --> 00:36:22.358 REINTERPRETED AND IT WAS REINTERPRETED IN CHOICE AND THEN IT SORT OF POPS UP AGAIN IN 389 00:36:22.358 --> 00:36:29.474 GARRON BUT I THINK IT WAS LIMITED AGAIN IN R.T. JUSTICE PATTERSON: OKAY. 390 00:36:29.474 --> 00:36:33.695 LESLIE-ANN M. JUSTUS: AS I JUST SAID WE HAVE TO LOOK AT WHETHER THIS LESSER 391 00:36:33.695 --> 00:36:40.063 INCLUDED DEFENSE POV DESTROYED THE DEFENSE HERE, THE DEFENSE HERE IN THIS HIGHLY 392 00:36:40.063 --> 00:36:43.367 CIRCUMSTANTIAL CASE, THE DEFENSE WAS HE WAS NOT AT THE SCENE AND ONE OF THE REASONS WE 393 00:36:43.367 --> 00:36:50.571 KNOW THAT'S HIS DEFENSE IS BECAUSE HE DIDN'T WANT THE FLIGHT CHARGE GIVEN. BOTH 394 00:36:50.571 --> 00:36:55.840 THE PROSECUTOR AND DEFENSE COUNSEL AGREED. AND THE FLIGHT CHARGE PRESUPPOSES THAT THE 395 00:36:55.840 --> 00:37:02.685 PERSON, THE DEFENDANT IS AT THE SCENE. SO, THE OTHER POINT I WOULD LIKE TO 396 00:37:02.685 --> 00:37:08.959 MAKE IS THAT THE MAJORITY REVIEWED AS MY COLLEAGUE SAID THE APPLICABILITY OF THE 397 00:37:08.959 --> 00:37:12.973 PASSION/PROVOCATION CHARGE BASED ON THE WRONG STANDARD. THEY REVIEWED IT IN THE LIGHT 398 00:37:12.973 --> 00:37:17.560 MOST FAVORABLE TO DEFENDANT RATHER THAN THE CORRECT STANDARD WHICH IS THE OVERALL 399 00:37:17.560 --> 00:37:24.751 STRENGTH OF THE STATE'S CASE WHICH IS A FUNDAMENTAL TEN NET OF THE PLAINTIFF OR 400 00:37:24.751 --> 00:37:29.082 ANALYSIS FOR BLANK JURY CHARGE. SECONDS, THE MAJORITY COMPOUNDED ITS ERRORS 401 00:37:29.082 --> 00:37:36.521 BY CONCLUDING WITH NO BLANK OF SUPPORT THAT THE DEFENDANT WAS EM PASSIONED BY A CONCERN 402 00:37:36.521 --> 00:37:44.609 FOR HIS FAMILY STRUCTURE BUT IGNORED RECKLESS SUPPORT OF CRITICAL FACTS SUCH AS THE BLANK 403 00:37:44.609 --> 00:37:52.045 PASSENGER WHO WAS IN THE CHEFR VEE MAL LIB BU, WHICH ANIMATED THE DEFENDANT'S THIRD PARTY 404 00:37:52.045 --> 00:37:57.864 GUILT DEFENSE. THE FOURTH AND FINAL ISSUE I WOULD LIKE TO RAISE IS THAT THE 405 00:37:57.864 --> 00:38:04.750 MAJORITY ERRED WHEN IT REQUIRED ON REMAND THAT EVIDENCE OF DEFENDANTS CHOKING OF M.L. 406 00:38:04.750 --> 00:38:11.650 DEE SANITIZED. JUSTICE PATTERSON: CAN I ASK YOU A QUESTION REGARDING THE 407 00:38:11.650 --> 00:38:15.812 WHITE HAT ISSUE INDIVIDUAL. THE SURVEILLANCE VIDEO INDICATES THAT WHEN 408 00:38:15.812 --> 00:38:20.177 DEFENDANT IS DRIVING AROUND AND THEN COMES BACK THAT THAT PERSON IS STILL IN THE CAR. 409 00:38:20.177 --> 00:38:25.155 LESLIE-ANN M. JUSTUS: MY UNDERSTANDING OF THE RECORD IS THAT THE 410 00:38:25.155 --> 00:38:29.055 RECORD INDICATES THAT THE WHITE HAT PASSENGER IS ONE OF THE CON STANTS IN THIS PARTICULAR 411 00:38:29.055 --> 00:38:35.829 CASE AND THAT'S HOW THE STATE TRACKS THE CAR THROUGHOUT THE DEFENDANT'S 45 MINUTES OF 412 00:38:35.829 --> 00:38:45.720 DRIVING FROM HAMILTON TO NORTH TRENTON AN THEN GOING AROUND SOUTH BROAD STREET. 413 00:38:45.720 --> 00:38:49.981 MY FOURTH AND FINAL POINT THAT I WOULD LIKE TO MAKE IS THAT THE MAJORITY ERRED WHEN IT 414 00:38:49.981 --> 00:38:56.640 REQUIRED ON REMAND THAT EVIDENCE OF DEFENDANT'S CHOKING OF M.L. BE SAN NET TIEZED WHEN 415 00:38:56.640 --> 00:39:01.757 CHOKING IS AN ELEMENT OF AGGRAVATED ASSAULT BY STRANGULATION, WHICH THE STATE WAS REQUIRED 416 00:39:01.757 --> 00:39:07.489 TO PROVE BEYOND A REASONABLE DOUBT. THE ATTORNEY GENERAL REQUESTS THAT THIS COURT MAKE 417 00:39:07.489 --> 00:39:14.272 A PLAIN STATEMENT TO THE EFFECT THAT EVIDENCE SHOULD NOT BE EXCLUDED, SHOULD NOT BE 418 00:39:14.272 --> 00:39:18.791 EXCLUDED IF DOING SO WOULD PREVENT THE STATE FROM ESTABLISHING AN ELEMENT OF THE CRIME 419 00:39:18.791 --> 00:39:27.006 AND I WOULD SAY THE BLANK TO THAT PROPOSITION. I INVITE QUESTIONS FROM THE 420 00:39:27.006 --> 00:39:29.956 COURT. CHIEF JUSTICE RABNER: THANK YOU, MS. JUSTUS. LESLIE-ANN M. 421 00:39:29.956 --> 00:42:31.967 JUSTUS: THANK YOU. Propensity allow prior episodes he have E violence top. 422 00:42:31.967 --> 00:42:36.428 Committed a different act of eyewitness. That's why we generally exclude, 423 00:42:36.428 --> 00:42:44.315 you know, that kind of evidence in the prior bad acts and criminal convictions. 424 00:42:44.315 --> 00:42:46.741 JUSTICE WAINER-APTER: You mentioned that passion/provocation is whether a reasonable 425 00:42:46.741 --> 00:42:49.840 person would have been provoked by the underlying conduct. What is the underlying 426 00:42:49.840 --> 00:42:56.916 conduct? Not on any theory what is the actual evidence of the underlying 427 00:42:56.916 --> 00:43:02.425 conduct? KEVIN S. FINCKENAUER: So the evidence is that M.L. and Mr. Owens 428 00:43:02.425 --> 00:43:06.719 were involved in a close ROM Alan I can relationship that they referred to 429 00:43:06.719 --> 00:43:11.210 to my as hubby that they had a child together that she had been texting Gonzalez 430 00:43:11.210 --> 00:43:16.080 daily for about a year. And was buying drugs from him almost daily for about a 431 00:43:16.080 --> 00:43:24.570 year. That Mr. Owens one day took her phone, went through it, became enraged, 432 00:43:24.570 --> 00:43:27.579 and then fort minutes later killed Gonzales. That's what the Ed at the trial 433 00:43:27.579 --> 00:43:35.132 that the state educed suggests. You know, accepting that theory. And that is Ed 434 00:43:35.132 --> 00:43:38.183 of passion/provocation manslaughter. JUSTICE WAINER-APTER: Sorry can you say 435 00:43:38.183 --> 00:43:42.574 just one more time she was buying drugs Gonzalez then the defendant took her 436 00:43:42.574 --> 00:43:46.847 phone and then he committed murder. KEVIN S. FINCKENAUER: Correct. 437 00:43:46.847 --> 00:43:49.791 JUSTICE WAINER-APTER: There's no evidence about what he saw in the phone or any 438 00:43:49.791 --> 00:43:53.521 -- is it your contention that the defendant had no idea that M.L. had ever used 439 00:43:53.521 --> 00:43:58.570 drugs until that moment? KEVIN S. FINCKENAUER: No my contention that 440 00:43:58.570 --> 00:44:02.389 sent he had never known that she's done drugs it's that he did not seem to know 441 00:44:02.389 --> 00:44:07.500 that she was doing heroin for a year before that. And we know that because 442 00:44:07.500 --> 00:44:09.731 we have text messages from him introduced had a showing us that he is is he 443 00:44:09.731 --> 00:44:13.455 upset about this and surprised by this. JUSTICE PIERRE-LOUIS: But surprised 444 00:44:13.455 --> 00:44:17.101 those text messages not many but they don't necessarily point to him being upset 445 00:44:17.101 --> 00:44:24.554 about her using drugs generally. He does say he wishes it was Coke. He makes 446 00:44:24.554 --> 00:44:30.595 a statement that he's upset that she's making I am had look bad by buying dope 447 00:44:30.595 --> 00:44:35.293 from someone behind his back. KEVIN S. FINCKENAUER: Right. JUSTICE 448 00:44:35.293 --> 00:44:40.332 PIERRE-LOUIS: And that's several days after the murder. As far as what happened 449 00:44:40.332 --> 00:44:46.802 that evening prior to him taking her -- prior to him taking her phone and her 450 00:44:46.802 --> 00:44:52.649 car, there is no testimony about what he saw, what it was that, you know, caused 451 00:44:52.649 --> 00:45:02.059 him to get upset and resulted in the, you know, Stanleyion; correct? KEVIN S. 452 00:45:02.059 --> 00:45:04.911 FINCKENAUER: Right couple there's no need to require directivity of every single 453 00:45:04.911 --> 00:45:08.210 thing in order to. JUSTICE PIERRE-LOUIS: But how is it how can a court 454 00:45:08.210 --> 00:45:15.527 find that there's clearly indicated evidence of passion/provocation when we don't 455 00:45:15.527 --> 00:45:19.379 know what he saw, we don't know what that evidence says. If a trial court 456 00:45:19.379 --> 00:45:24.530 can't look if there's nothing in the record showing that there was something 457 00:45:24.530 --> 00:45:27.958 that provoked the defendant, how about is it clearly indicated that it should 458 00:45:27.958 --> 00:45:32.576 be a passion prostitution instruction should be given. KEVIN S. FINCKENAUER: 459 00:45:32.576 --> 00:45:35.518 Well, I would start by saying that this is exactly watt state argued to the 460 00:45:35.518 --> 00:45:38.978 jury. I think it's cornering to say that there's no real evidence to suggest had 461 00:45:38.978 --> 00:45:43.698 a he saw her communications with with Gonzalez that's what spurned the killing when 462 00:45:43.698 --> 00:45:46.469 this is exactly combat state argued to the jury to convict I am had of murder. 463 00:45:46.469 --> 00:45:49.979 So I don't see how. JUSTICE WAINER-APTER: I think the state is just 464 00:45:49.979 --> 00:45:54.762 arguing that getting angry and killing someone does not automatically mean that 465 00:45:54.762 --> 00:45:58.032 you were reasonable suspended or revoked so we're asking what is the evidence 466 00:45:58.032 --> 00:46:03.177 of adequate provision provocation. Not the evidence that he was angry. We 467 00:46:03.177 --> 00:46:07.342 can agree that someone is angry. Just because someone is angry does not mean 468 00:46:07.342 --> 00:46:12.731 that there's a passion/provocation instruction that is necessitated because the 469 00:46:12.731 --> 00:46:15.012 evidence he find adequate provocation is clearly jumping off of it page opinion 470 00:46:15.012 --> 00:46:18.096 here there was no (e) at all that was jumping off 69 the page right because 471 00:46:18.096 --> 00:46:21.086 it's only about argument not evidence. KEVIN S. FINCKENAUER: Well, again 472 00:46:21.086 --> 00:46:27.025 the the on argument is just based on obvious amps from the the. JUSTICE 473 00:46:27.025 --> 00:46:30.269 WAINER-APTER: Which he evidence is jumping off of the of the page. KEVIN S. 474 00:46:30.269 --> 00:46:37.311 FINCKENAUER: That he was upset about her heroin with us they at a Wen and he meld 475 00:46:37.311 --> 00:46:40.400 auto killed the person. JUSTICE HOFFMAN: Not immediately. KEVIN S. 476 00:46:40.400 --> 00:46:42.769 FINCKENAUER: About forty minutes later. JUSTICE HOFFMAN: Let's put way 477 00:46:42.769 --> 00:46:46.810 the forted minutes. He talked to go Gonzalez several times. For somewhere 478 00:46:46.810 --> 00:46:51.946 between ten and fifteen minutes. We have no idea what those conversations 479 00:46:51.946 --> 00:46:57.357 were about. There is some inference from some of the phone calls that M.L. 480 00:46:57.357 --> 00:47:01.643 was trying to set up the defendant with the to sell drugs. We don't know if that 481 00:47:01.643 --> 00:47:08.152 call was about, no, I won't sell you drugs. We don't know if it was about, 482 00:47:08.152 --> 00:47:11.197 no, I won't front you drugs. I want the money up front. We don't have no 483 00:47:11.197 --> 00:47:16.048 idea what those fifteen minutes of calls between them were so when you say when 484 00:47:16.048 --> 00:47:24.535 you jump immediately from assault to -- from the incidents at the apartment to murder 485 00:47:24.535 --> 00:47:28.149 there are significant events in between that are being skipped over not nine 486 00:47:28.149 --> 00:47:31.756 least of which which we rarely have a case like this in which the defendant 487 00:47:31.756 --> 00:47:36.347 the victim are having fifteen minutes of conversation. KEVIN S. FINCKENAUER: 488 00:47:36.347 --> 00:47:42.373 So the calls are Kelly quat state used to argue that this showed us he was 489 00:47:42.373 --> 00:47:44.099 enframed famed H flamed. JUSTICE HOFFMAN: The texts in the apartment that 490 00:47:44.099 --> 00:47:49.163 he reviewed were used. KEVIN S. FINCKENAUER: So were the phone calls. 491 00:47:49.163 --> 00:47:53.430 The state referenced these fine phone calls and saying to the jury and then he's 492 00:47:53.430 --> 00:47:57.701 on his way and you can see highs upset he's calling nine times and we have 493 00:47:57.701 --> 00:48:00.204 direct evidence that the Gonzalez was on the phone and upset on the phone so 494 00:48:00.204 --> 00:48:09.389 you can infer a reasonable obvious inference that the calls were perhaps a bit 495 00:48:09.389 --> 00:48:13.216 hostile I just tops one thing very auto quickly and that's that whether or not he 496 00:48:13.216 --> 00:48:17.247 was actually provoked is the element of passion/provocation manslaughter which 497 00:48:17.247 --> 00:48:20.638 is not something that's part of the clearly indicated analysis for determining 498 00:48:20.638 --> 00:48:23.285 whether or not the the judge should have provided the instructions. It's whether 499 00:48:23.285 --> 00:48:29.643 a reasonable person could have been adequately provoked based on the 500 00:48:29.643 --> 00:48:33.377 underlying provision which is him selling her heroin. JUSTICE PIERRE-LOUIS: 501 00:48:33.377 --> 00:48:35.976 Again I don't have any evidence of what what the underlying provision was and 502 00:48:35.976 --> 00:48:43.429 do you disagree with Mr. Sam 88 he he will that at trial M.L. testified that the 503 00:48:43.429 --> 00:48:48.735 what upsets defendant had nothing to do with Gonzalez examine fourth to do with 504 00:48:48.735 --> 00:48:53.889 someone named Donald and Mr. Samel repped that at trial the defense theory was 505 00:48:53.889 --> 00:49:00.090 this had nothing to do with Samel, you know, the stanglation I'm sorry with 506 00:49:00.090 --> 00:49:06.662 Gonzalez. Sorry. With Gonzalez. This had 20th with this Donald characterized 507 00:49:06.662 --> 00:49:10.289 so defendant doesn't even know gallons, defendant, you know, was he upset with 508 00:49:10.289 --> 00:49:14.336 this person named Donald and that's why this happens. KEVIN S. FINCKENAUER: 509 00:49:14.336 --> 00:49:19.297 So I will say does the the state said during the searchings case where during 510 00:49:19.297 --> 00:49:23.350 that argument this was 69 defense argument that the assault has nothing is to do 511 00:49:23.350 --> 00:49:27.307 with the murder because M.L. said it sent to be to do the Donald. And and 512 00:49:27.307 --> 00:49:31.713 the state said to focus on that he haved is to ignore Ed that overwhelming and 513 00:49:31.713 --> 00:49:34.633 they were talking about the fact that this was not very quelling that she was 514 00:49:34.633 --> 00:49:38.749 talking about Donald and the had a obvious read of the fact accounts that he went 515 00:49:38.749 --> 00:49:43.583 through her phone was upset about her contacts with Gomez killed him because 516 00:49:43.583 --> 00:49:47.636 of that. JUSTICE WAINER-APTER: I'm still not sure about how accident upset 517 00:49:47.636 --> 00:49:53.049 about something gives I license to kill someone. Adequate provision is saying 518 00:49:53.049 --> 00:49:57.546 it is reasonable for you is to become so enraged and lose all control that it is 519 00:49:57.546 --> 00:50:01.486 reasonable for you to go kill someone in response to what you just saw or 520 00:50:01.486 --> 00:50:04.754 experienced. How does getting upset amine that you have the right to go kill 521 00:50:04.754 --> 00:50:09.574 someone or that is it is reasonable to go kill someone. KEVIN S. FINCKENAUER: 522 00:50:09.574 --> 00:50:13.277 Is to passion manslaughter did not mean it is reasonable to kill the or right 523 00:50:13.277 --> 00:50:18.655 to kill the person. It remains second agree felony for which you canning be 524 00:50:18.655 --> 00:50:24.896 sentence toeth ten years up to principal posterior twenty. Creel serious against 525 00:50:24.896 --> 00:50:27.271 extinct this understandingly the passion/provocation I'll see cases where you 526 00:50:27.271 --> 00:50:32.408 have a homicide and they're already assaulting automate the Hagman and reckless 527 00:50:32.408 --> 00:50:37.782 man and still the passion progressive because she see it adds in some way 528 00:50:37.782 --> 00:50:42.124 condoninged the person's actions. And it's not does this person do all the right 529 00:50:42.124 --> 00:50:46.201 things was there evidence McNugget the killing because there were citizen he 530 00:50:46.201 --> 00:50:49.598 is an sudden and the edit did it that. JUSTICE WAINER-APTER: But about 531 00:50:49.598 --> 00:50:56.380 it says state versus thunderburg. (Reading.). To satisfy this element 532 00:50:56.380 --> 00:50:58.993 there must being evidence that a reasonable person in the defendant's he position 533 00:50:58.993 --> 00:51:02.860 would have been proponent sufficient to rouse the IT passions of an ordinary man 534 00:51:02.860 --> 00:51:06.888 I don't understand ninth power of his control so again it's not just about 535 00:51:06.888 --> 00:51:12.805 whether you're angry. It's about your provocation was as such that any 536 00:51:12.805 --> 00:51:16.763 reasonable person would have lost control of themselves and gone and murdered someone. 537 00:51:16.763 --> 00:51:19.577 KEVIN S. FINCKENAUER: I think it's a fine line because no reasonable person 538 00:51:19.577 --> 00:51:24.206 kills someone no matter how upset they are. And that's why this remains a 539 00:51:24.206 --> 00:51:27.052 serious upon us it's whether or notthth on it underlying provocation of something 540 00:51:27.052 --> 00:51:31.998 again that would could the understandable generally-for-incensing someone's 541 00:51:31.998 --> 00:51:36.062 passions but I think getting too hung up. JUSTICE WAINER-APTER: First 542 00:51:36.062 --> 00:51:42.845 degree murder could be life in prison without parole correct.; correct? fringe. 543 00:51:42.845 --> 00:51:43.987 KEVIN S. FINCKENAUER: Correct. JUSTICE WAINER-APTER: And this would 544 00:51:43.987 --> 00:51:47.779 bring it down generally to up to ten years. KEVIN S. FINCKENAUER: Correct. 545 00:51:47.779 --> 00:51:50.575 JUSTICE WAINER-APTER: So it could be very big difference. KEVIN S. 546 00:51:50.575 --> 00:51:54.296 FINCKENAUER: Right it can be a very dig difference in sentence. But second 547 00:51:54.296 --> 00:51:58.235 degree is our second highest degree of felony. JUSTICE PATTERSON: Your predecessor 548 00:51:58.235 --> 00:52:02.763 adds defendant's counsels inclined the coarse to the opportunity to request 549 00:52:02.763 --> 00:52:07.698 any lesser included let alone passion/provocation. KEVIN S. 550 00:52:07.698 --> 00:52:11.202 FINCKENAUER: Right so I did want to address this issue because I feel that it is 551 00:52:11.202 --> 00:52:15.300 something that's very, very closure accumulate case law as ahas R has 552 00:52:15.300 --> 00:52:20.819 already been Mex you have Powell which very expressly and elegantly state it's 553 00:52:20.819 --> 00:52:25.605 trial court's independent duty to structure on lessers whether or not it comports 554 00:52:25.605 --> 00:52:28.232 with what the parties strategy are because there is a greater interest and 555 00:52:28.232 --> 00:52:31.650 that is the interest of the public in having all the correct offenses placed 556 00:52:31.650 --> 00:52:35.732 before the jury and I think also wanted to mention the. CHIEF JUSTICE RABNER: 557 00:52:35.732 --> 00:52:41.584 Your colleague Ms. Justus went lot case law with us. What are you relying on. 558 00:52:41.584 --> 00:52:44.991 KEVIN S. FINCKENAUER: There is Powell and I want to talk about Guerrin 559 00:52:44.991 --> 00:52:47.499 because it was mentioned but Guerrin again expressly said we're going to take 560 00:52:47.499 --> 00:52:51.002 the time to remind you all that Powell exists and that you have this duty and 561 00:52:51.002 --> 00:52:55.287 you should do it. And in Guerrin the deference attorney did well, more than what 562 00:52:55.287 --> 00:52:59.457 happened here and that case the defense attorney expressly said I wanted all 563 00:52:59.457 --> 00:53:03.408 other nothing I don't want any lessers and the trial court said okay and in 564 00:53:03.408 --> 00:53:07.568 that decision this court said that trial court did wrong that trial court shoo 565 00:53:07.568 --> 00:53:12.079 given the lesser despite what defense counsel said because it was clearly 566 00:53:12.079 --> 00:53:16.358 indicated from the record and there's hire interests that are at stake and then you 567 00:53:16.358 --> 00:53:22.762 have multiple cases. You have generalizations from this court where 568 00:53:22.762 --> 00:53:24.481 again defense counsel advocated against the instruction it was raised as a clearly 569 00:53:24.481 --> 00:53:29.568 indicated issue on appeal and this caterersed based on the fact that the trial 570 00:53:29.568 --> 00:53:33.313 court should have instructed on it ask notwithstanding the fact fact that defense 571 00:53:33.313 --> 00:53:37.488 count did not want it and you have multiple Appellate Division cases doing 572 00:53:37.488 --> 00:53:42.522 the same thing so it's something that's been long settle doesed in the long 573 00:53:42.522 --> 00:53:46.371 and this makes sense because the these offenses don't have to be included Des 574 00:53:46.371 --> 00:53:49.628 Moines an indictment because you're not surprised when you're confronted I don't 575 00:53:49.628 --> 00:53:53.870 tell enact you may be convicted of a lesser especially a clearly indicated 576 00:53:53.870 --> 00:53:57.724 can obvious lesser because you're on notice. There's no constitutional notice 577 00:53:57.724 --> 00:54:04.462 issue. There's no fair trial issue generally and as to the fact of well, 578 00:54:04.462 --> 00:54:08.673 there's this sliver of case where maybe it would be to so surprising as to under 579 00:54:08.673 --> 00:54:13.087 mine a defendant's defense, that's supposed to be a very narrow kind of safety 580 00:54:13.087 --> 00:54:20.457 valve where maybe some rare exception that would happen but Guerrin expressly 581 00:54:20.457 --> 00:54:22.734 says we can't even he discover of I have case where a that might happen but 582 00:54:22.734 --> 00:54:29.158 if that does happen then that might be appropriate but brawled lesser clues are 583 00:54:29.158 --> 00:54:32.700 not surprises to a defense there's no notice to a defense and trial courts do 584 00:54:32.700 --> 00:54:37.560 what they're supposed to to do and product is to lessers. JUSTICE NORIEGA: 585 00:54:37.560 --> 00:54:42.371 How should we deal with the potential incompatibility issue. If 586 00:54:42.371 --> 00:54:46.671 passion/provocation was instructed here, and the defense attorney then had to get 587 00:54:46.671 --> 00:54:52.824 up and deal with passion/provocation as a potential argument where that is 588 00:54:52.824 --> 00:54:59.520 wholly inconsistent with a third party guilt or the defendant not being the 589 00:54:59.520 --> 00:55:05.654 one involved at all, how do we deal with that as instructing future courts to deal 590 00:55:05.654 --> 00:55:09.810 with this issue. KEVIN S. FINCKENAUER: So I think this is again 591 00:55:09.810 --> 00:55:13.713 clearly indicated I'm not suggesting in court should be doing that all the time or 592 00:55:13.713 --> 00:55:20.665 that defendants should even get reversals all the time but where I think this 593 00:55:20.665 --> 00:55:23.411 is exact Keim could I say didn't the the it's not obscene to the defendant 594 00:55:23.411 --> 00:55:28.138 to have included the charge and I don't think it would have undermined his defense 595 00:55:28.138 --> 00:55:33.077 in any way because when your defense is I didn't do at us that applies equally. 596 00:55:33.077 --> 00:55:35.614 JUSTICE WAINER-APTER: I thought the on defense was I wasn't there. How could you 597 00:55:35.614 --> 00:55:40.795 have been adequately provoked murder someone if up the anywhere near the murder. 598 00:55:40.795 --> 00:55:42.845 KEVIN S. FINCKENAUER: That's what I'm saying, Your Honor. That he would 599 00:55:42.845 --> 00:55:48.527 not the have argued anything dither if the passion/provocation had been included 600 00:55:48.527 --> 00:55:53.229 because nor would the the stay I think not have changed their case all too 601 00:55:53.229 --> 00:55:57.832 much because again that was their theory so I find it strange that that he would 602 00:55:57.832 --> 00:56:02.858 be introducing or kinds of of his evidence to say that he would not be upset about 603 00:56:02.858 --> 00:56:07.334 emboldens selling M.L. heroin when they're saying that's exactly why the killing 604 00:56:07.334 --> 00:56:10.089 happened. JUSTICE HOFFMAN: Doesn't it puppet the before the the jury 605 00:56:10.089 --> 00:56:14.339 the question you can see a gyre hearing that instruction ask saying what's 606 00:56:14.339 --> 00:56:19.157 this about. We just heard the entire defense's strategy which was as Justice Wainer-Apter 607 00:56:19.157 --> 00:56:24.886 said I'm not there. I wasn't could not be me because I wasn't there. And 608 00:56:24.886 --> 00:56:32.353 then they get an instruction that says but if you find that he was there and 609 00:56:32.353 --> 00:56:38.052 did this in a moment of passion, the following will happen? House the juror not 610 00:56:38.052 --> 00:56:42.011 devised confused by that. KEVIN S. FINCKENAUER: So when we jurors struck 611 00:56:42.011 --> 00:56:45.886 on lesser Santa Claus there is ace particular instruction that tells the jury 612 00:56:45.886 --> 00:56:49.602 listen this was not included in the indictment it may not have even been expressed 613 00:56:49.602 --> 00:56:52.965 issue at the trial. Q I have to give these particular offends whatever the 614 00:56:52.965 --> 00:56:58.308 specific language it explains to the jury what this function says of a lesser offense. 615 00:56:58.308 --> 00:57:01.925 JUSTICE PIERRE-LOUIS: So if the passion/provocation instruction was given, 616 00:57:01.925 --> 00:57:10.258 and defendant's defense of I wasn't there I didn't do it. The judge gives 617 00:57:10.258 --> 00:57:14.681 the instruction anyway and the jury quicks on manslaughter, aren't you before 618 00:57:14.681 --> 00:57:20.628 arguing that that passion/provocation instruction should never have been given 619 00:57:20.628 --> 00:57:25.659 because otherwise your defendant would have been why they can because this was afts 620 00:57:25.659 --> 00:57:31.263 circumstantial case no one saw him do it no one was at the scene the video 621 00:57:31.263 --> 00:57:37.319 is grainy and this defendant should be acquitted Finckenauer my understanding 622 00:57:37.319 --> 00:57:41.812 is that is acceptable that the the defendant -- again outsides the circulations 623 00:57:41.812 --> 00:57:46.110 of undue surprise and you can always loafings but that is generally 624 00:57:46.110 --> 00:57:50.812 acceptable and Baffert the bargain of that is that defendants can raise on clear 625 00:57:50.812 --> 00:57:54.786 error where the the tribal did not do you the independent detour and again because 626 00:57:54.786 --> 00:57:58.514 that the the trial courts have this independent duty is clear and so if they 627 00:57:58.514 --> 00:58:02.286 did not do what they were supposed to to do and the result of you that is the that 628 00:58:02.286 --> 00:58:06.572 defendant is convict when he could have been why they can then there's no reason 629 00:58:06.572 --> 00:58:10.234 that he should not be able to raids ta on appeal. JUSTICE WAINER-APTER: 630 00:58:10.234 --> 00:58:13.509 I'm sorry you're saying he could on appeal say this was totally unfair I requested 631 00:58:13.509 --> 00:58:17.690 that this chargen the be given and then it was given and I was denied by right 632 00:58:17.690 --> 00:58:21.947 to determine my own defense. KEVIN S. FINCKENAUER: They could raise that 633 00:58:21.947 --> 00:58:26.456 on the narrow, you know, exception that's in guerre Guerrin but again that's really 634 00:58:26.456 --> 00:58:29.735 technically supposed to be a very, very outlier case and in general it's not 635 00:58:29.735 --> 00:58:34.119 inappropriated for defendant's to be convicted on lessers that they did not 636 00:58:34.119 --> 00:58:39.157 want tor ask for. CHIEF JUSTICE RABNER: Can you focus with us on the cooling 637 00:58:39.157 --> 00:58:44.851 off period here. We know from the evidence that the defendant undertook a 638 00:58:44.851 --> 00:58:46.916 number of deliberate after he happens he leaves the apartment. He fuels up the car 639 00:58:46.916 --> 00:58:53.166 with gas. Picks up a passenger. Stops at an apartment complex and then has 640 00:58:53.166 --> 00:58:58.150 24 series of driving past and the phenyls because Justice Hoffman went over 641 00:58:58.150 --> 00:59:02.971 with you on the defendant's block. Doesn't all of that suggest an adequate period 642 00:59:02.971 --> 00:59:07.055 of time to cool off. KEVIN S. FINCKENAUER: So it doesn't make it as a 643 00:59:07.055 --> 00:59:12.008 matter of law such a sufficient cool down that passion/provocation was want clearly 644 00:59:12.008 --> 00:59:17.808 Cade or should not have been submitted to the jury. It's relatively spar so 645 00:59:17.808 --> 00:59:23.015 a what you had in measurese yes which is a case where a defendant get rid of 646 00:59:23.015 --> 00:59:29.686 to a club was loan out a I bouncing came back with I shotgun, came back and 647 00:59:29.686 --> 00:59:35.126 then ten minutes later shot someone to I believe to be abashes in the states versus 648 00:59:35.126 --> 00:59:39.177 rodents which is he is clearly indicated case where this Court reversed the 649 00:59:39.177 --> 00:59:44.109 it expressly incorporated Maurice auto yes in discussing col down periods of 650 00:59:44.109 --> 00:59:46.665 time where the the clearly indicated stashed. CHIEF JUSTICE RABNER: Do 651 00:59:46.665 --> 00:59:53.463 all these acts under mine the edit if a Ed suffers from runoff of page. 652 00:59:53.463 --> 00:59:56.182 KEVIN S. FINCKENAUER: I do not think this undermines it jumping off of page because 653 00:59:56.182 --> 00:59:58.630 going to you're talking about a you see continuous series of funniest of course 654 00:59:58.630 --> 01:00:00.887 nine statute at that time trial if they want to to make evidence against us 655 01:00:00.887 --> 01:00:06.936 it if the charm are an included they could say he could have cooled Don but 656 01:00:06.936 --> 01:00:10.451 that's more factual squalling it's more the fourth of whether or not he did cool 657 01:00:10.451 --> 01:00:15.065 down rather than the second where you have like an objectively unsatisfactory 658 01:00:15.065 --> 01:00:21.767 cool down period. JUSTICE WAINER-APTER: Going back to the he haved he 659 01:00:21.767 --> 01:00:24.820 find adequate provocation that jumps off of page are you relying on the Appellate 660 01:00:24.820 --> 01:00:28.815 Division what the Appellate Division relied on so they say the information defendant 661 01:00:28.815 --> 01:00:35.093 he discovered and to which she reacted for the the (Reading.) that's where 662 01:00:35.093 --> 01:00:42.183 M.L. was a heroin addict whose drugs to seeeth submitted eye Gonzalez threatened 663 01:00:42.183 --> 01:00:45.609 the relationship and continuous of the family structure is that your he haved 664 01:00:45.609 --> 01:00:50.665 he find why this was jumping off of page yipping. KEVIN S. FINCKENAUER: 665 01:00:50.665 --> 01:00:55.916 Right. JUSTICE WAINER-APTER: What is the evidence of any of that? He choked 666 01:00:55.916 --> 01:01:03.476 and it attempted to bite off the finger of this person who he ostensibly loved 667 01:01:03.476 --> 01:01:07.864 examine topped continue a family structure with doesn't it seem like that would 668 01:01:07.864 --> 01:01:14.129 danger their romantic relationship and the continuous of their family structure. 669 01:01:14.129 --> 01:01:18.293 KEVIN S. FINCKENAUER: I mean, again with passion/provocation it's not 670 01:01:18.293 --> 01:01:21.377 that the the person acted admire. JUSTICE WAINER-APTER: It's reasonable 671 01:01:21.377 --> 01:01:26.404 they acted in a way that a reasonable person would have in this circumstances. 672 01:01:26.404 --> 01:01:30.117 Is this thousand a reasonable person would behave. KEVIN S. FINCKENAUER: 673 01:01:30.117 --> 01:01:33.461 I aid the 9 percent reasonable person acting unreasonable. Again init is not 674 01:01:33.461 --> 01:01:39.309 theical can it is its reasonable. It's just ate reasonable person could have been 675 01:01:39.309 --> 01:01:41.170 enflamed. JUSTICE WAINER-APTER: Could have lost the ability to have 676 01:01:41.170 --> 01:01:44.918 any control. That's data case law says. It's not just could have gotten angry. 677 01:01:44.918 --> 01:01:52.764 We all get angry all the time. That does not give us license to do anything 678 01:01:52.764 --> 01:01:55.435 terrible another human. KEVIN S. FINCKENAUER: Unknowing no I'm not 679 01:01:55.435 --> 01:02:00.412 suggesting that. It's enflamed beyond reason but there is nothing. JUSTICE 680 01:02:00.412 --> 01:02:06.286 WAINER-APTER: Where is the Ed that what he was really worried about was his 681 01:02:06.286 --> 01:02:09.241 romantic relationship president M.L. and the continuous of their family structure? 682 01:02:09.241 --> 01:02:13.770 KEVIN S. FINCKENAUER: That there was evidence that he was upset her taking 683 01:02:13.770 --> 01:02:17.416 heroin and the fact that they were very, very and lows that she was the parent 684 01:02:17.416 --> 01:02:20.858 of his child I think it's fair to assume. JUSTICE WAINER-APTER: He said 685 01:02:20.858 --> 01:02:24.827 it would have been better if it was cocaine in his words because he didn't 686 01:02:24.827 --> 01:02:28.339 say anything here right. KEVIN S. FINCKENAUER: Right that was the one of 687 01:02:28.339 --> 01:02:33.166 the text messages but there's a fair inference that he that he wasn't upset by her 688 01:02:33.166 --> 01:02:37.113 using heroin and the reason he wasn't upset by it is is the nature he find 689 01:02:37.113 --> 01:02:46.218 their relationship. I think there this also gets to I can talk a bit more about 690 01:02:46.218 --> 01:02:50.717 the passion/provocation issue if Your Honors like before. CHIEF JUSTICE 691 01:02:50.717 --> 01:02:54.866 RABNER: Go ahead. KEVIN S. FINCKENAUER: Okay then as to the severance 692 01:02:54.866 --> 01:03:03.565 issue, again, the domestic violence episode should have been severed from the 693 01:03:03.565 --> 01:03:07.989 homicide offenses. I don't think that there still. CHIEF JUSTICE RABNER: 694 01:03:07.989 --> 01:03:09.745 Why. KEVIN S. FINCKENAUER: I'm sorry. CHIEF JUSTICE RABNER: Why Finckenauer 695 01:03:09.745 --> 01:03:14.238 it keep largely because of the prejudice. So you analyze it under the Coe 696 01:03:14.238 --> 01:03:20.041 field test which has four prongs materiality, close in time, that the evidence 697 01:03:20.041 --> 01:03:23.881 is clear clear and convincing and then prejudice and I think. CHIEF JUSTICE 698 01:03:23.881 --> 01:03:27.702 RABNER: Suppose this were a one count indictment. Count of murder. Could you 699 01:03:27.702 --> 01:03:33.396 introduce the evidence in that case? KEVIN S. FINCKENAUER: I still think you 700 01:03:33.396 --> 01:03:36.902 should not even if it wasn't a indicted offense just under the ordinary four 701 01:03:36.902 --> 01:03:44.537 owe four B. Especially if there was no passion. CHIEF JUSTICE RABNER: Go 702 01:03:44.537 --> 01:03:46.344 ahead. KEVIN S. FINCKENAUER: Especially if there's not the a passion/provocation 703 01:03:46.344 --> 01:03:51.192 issue it might be evidence of passion or provision but it doesn't move the 704 01:03:51.192 --> 01:03:55.232 needle much with respect to the state proving murder other than it not in a 705 01:03:55.232 --> 01:04:00.844 way that is out the weighed by the risk of the jury using it as propensity evidence. 706 01:04:00.844 --> 01:04:04.560 JUSTICE PIERRE-LOUIS: So if this case were to go back for a new trial 707 01:04:04.560 --> 01:04:14.550 you would still the domestic violence incident completely severed finger 708 01:04:14.550 --> 01:04:15.762 finger Finckenauer correct. JUSTICE PIERRE-LOUIS: But you would also be 709 01:04:15.762 --> 01:04:20.134 want a passion/provocation instruction. KEVIN S. FINCKENAUER: To my the trial 710 01:04:20.134 --> 01:04:23.751 that happened that clearly indicated passion/provocation and the on basis of 711 01:04:23.751 --> 01:04:26.398 that the tattoo state stay on patrol the evidence that the state educed and 712 01:04:26.398 --> 01:04:30.998 the arguments they made. JUSTICE WAINER-APTER: I thought that you just 713 01:04:30.998 --> 01:04:34.654 it is that struck at the core ofses roam act not auto the familial relationship 714 01:04:34.654 --> 01:04:41.868 of M.L. and minor child because he learned that M.L. was of a heroin. That 715 01:04:41.868 --> 01:04:47.065 has nothing, I mean, my argument I was asking why would him attacking her want 716 01:04:47.065 --> 01:04:51.134 actually disprove that and you were explains why you think it doesn't but how would 717 01:04:51.134 --> 01:04:53.733 I don't understand if there was no evidence of domestic violence then you would 718 01:04:53.733 --> 01:04:59.931 say that finding out that your relative was buying heroin is not adequate 719 01:04:59.931 --> 01:05:04.435 provocation it's only adequate protesting E provocation because he then attempts 720 01:05:04.435 --> 01:05:08.142 is to strangle her is it and bite off hardware finger. KEVIN S. 721 01:05:08.142 --> 01:05:11.321 FINCKENAUER: I'm only saying I don't know what they're they're would be the 722 01:05:11.321 --> 01:05:13.871 theory has changed multiple times throughout the course of the case. I don't know 723 01:05:13.871 --> 01:05:18.021 what what I new trial would look like. Maybe it would warrant 724 01:05:18.021 --> 01:05:21.116 passion/provocation maybe it wouldn't. It would depend on that trial if if it did 725 01:05:21.116 --> 01:05:25.200 then the trial court would be blind to instruct on it. JUSTICE 726 01:05:25.200 --> 01:05:28.659 WAINER-APTER: And that has on it evident state argues and. KEVIN S. 727 01:05:28.659 --> 01:05:30.631 FINCKENAUER: No it has to the to do the and he had ideological CD abused positive 728 01:05:30.631 --> 01:05:37.120 the and evidence ordinary and obvious inferences from the the evidence and not 729 01:05:37.120 --> 01:05:44.357 fantasy. But going back to the severance issue, again I think that domestic violence 730 01:05:44.357 --> 01:05:50.901 episode is incredibly prejudicial. It's something High School that he very 731 01:05:50.901 --> 01:05:55.002 visceral defensor most people. We Santa state at a a very seriously which 732 01:05:55.002 --> 01:06:00.511 is why when we an act that has very strict penalties for it. CHIEF JUSTICE 733 01:06:00.511 --> 01:06:03.056 RABNER: How is it propensity evidence could you explain what you mean come 734 01:06:03.056 --> 01:06:05.193 by that. KEVIN S. FINCKENAUER: I think that if the jury were to find that 735 01:06:05.193 --> 01:06:08.902 he committed the domestic violence episode they might say think him more likely 736 01:06:08.902 --> 01:06:14.400 to commit to have committed the murder or of killing based on this prior episode 737 01:06:14.400 --> 01:06:18.341 of violence. CHIEF JUSTICE RABNER: What does propensity evidence mean? 738 01:06:18.341 --> 01:06:23.955 KEVIN S. FINCKENAUER: That you are more likely to engage in the subsequent 739 01:06:23.955 --> 01:06:27.548 act of violence because you engaged in previous acts of violence is what I. 740 01:06:27.548 --> 01:06:31.509 CHIEF JUSTICE RABNER: So here with a forty Mitt period of time, the fact 741 01:06:31.509 --> 01:06:38.221 that he strangled someone an element of the charge in this particular case 742 01:06:38.221 --> 01:06:44.548 is proof that he has the propensity to kill people as opposed to proof that 743 01:06:44.548 --> 01:06:47.942 he had motivate in this particular case? KEVIN S. FINCKENAUER: I think anything 744 01:06:47.942 --> 01:06:52.914 that the state wanted with respect to motivate could have Benny deuced without 745 01:06:52.914 --> 01:06:57.288 the actual physical assault. I don't think it's very probative with respect 746 01:06:57.288 --> 01:07:05.249 to approving the murder charge and again I don't think it is it is it's indispute 747 01:07:05.249 --> 01:07:07.586 prejudicial I think the the is it a emacknowledges can this is something that's 748 01:07:07.586 --> 01:07:11.201 very, very prejudicial. Despite that prejudice it needs to be included 2349 749 01:07:11.201 --> 01:07:17.337 case and I submit that it doesn't for the state to meet its case. JUSTICE 750 01:07:17.337 --> 01:07:20.630 PATTERSON: I just wanted to go back for a moment to passion/provocation. Do you 751 01:07:20.630 --> 01:07:27.421 concede that on page ten of the Appellate Division majority's opinion the reference 752 01:07:27.421 --> 01:07:30.005 to quote determining in the evident jury and where you are under the influence 753 01:07:30.005 --> 01:07:33.229 passion/provocation manslaughter the trial judge must view the evidence in 754 01:07:33.229 --> 01:07:39.238 the light for officially 230 defendant citing vair athen going on in fairness 755 01:07:39.238 --> 01:07:44.653 for the majority to talk about clearly indicated the clearly indicated standard 756 01:07:44.653 --> 01:07:48.064 but with respect to the viewing the evidence in the light Mo favorable to defendant 757 01:07:48.064 --> 01:07:53.238 could you concede that that doesn't apply if we're talking about a sue respondent 758 01:07:53.238 --> 01:08:00.127 issue. KEVIN S. FINCKENAUER: Well, I think it's a little conflicted because 759 01:08:00.127 --> 01:08:03.861 it was announced as a new rule in Canfield if they Appellate Division Canfield. 760 01:08:03.861 --> 01:08:11.177 My reading of this court's decision in Canfield I do not see that opinion 761 01:08:11.177 --> 01:08:12.843 expressly developing that. JUSTICE WAINER-APTER: Can you say one more time 762 01:08:12.843 --> 01:08:16.208 what's the new rule. KEVIN S. FINCKENAUER: Thought 200 clearly 763 01:08:16.208 --> 01:08:20.735 indicated standard does not incorporate the the light most favorable evidence viewing 764 01:08:20.735 --> 01:08:23.963 test. That was something that was part of the Appellate Division Canfield. 765 01:08:23.963 --> 01:08:27.041 JUSTICE WAINER-APTER: But I thought the clearly indicated test is jumping 766 01:08:27.041 --> 01:08:32.439 off of page so it has to be that it's totally obvious from the record; 767 01:08:32.439 --> 01:08:35.193 correct? KEVIN S. FINCKENAUER: But still in any instance you're going to 768 01:08:35.193 --> 01:08:39.499 be to some extent it's just the naught the issue you will be looking at the 769 01:08:39.499 --> 01:08:43.669 record for evidence of the charge to see whether or not it's supported. 770 01:08:43.669 --> 01:08:49.516 JUSTICE PATTERSON: But isn't vair aa case regarding a requested charge? KEVIN 771 01:08:49.516 --> 01:08:52.448 S. FINCKENAUER: Right but I think also state versus Taylor which is an Appellate 772 01:08:52.448 --> 01:08:56.958 Division case it was not requested. Also my I'm sorry my recollectionion that 773 01:08:56.958 --> 01:09:02.086 the case that was cited by the Appellate Division was clearly indicated I think 774 01:09:02.086 --> 01:09:05.060 stated. JUSTICE PATTERSON: That's vair a. KEVIN S. FINCKENAUER: Right 775 01:09:05.060 --> 01:09:07.717 I think that it is. I canned believed mistaken. JUSTICE PATTERSON: 2001 776 01:09:07.717 --> 01:09:11.139 Appellate Division indication. KEVIN S. FINCKENAUER: I believe it was 777 01:09:11.139 --> 01:09:15.203 ate I clearly indicated and I believe state versus Taylor does the the same 778 01:09:15.203 --> 01:09:18.813 thing. You could. JUSTICE PATTERSON: Do you think that was there 779 01:09:18.813 --> 01:09:24.275 was some confusion at that time about what the standard was? Back twenty four years 780 01:09:24.275 --> 01:09:27.453 ago. KEVIN S. FINCKENAUER: I don't know that it was contusion. It 781 01:09:27.453 --> 01:09:32.620 just was something that has not been particularly addressed and then Canfield 782 01:09:32.620 --> 01:09:39.635 announced a new real that was not expressly dopped by this court's decision. 783 01:09:39.635 --> 01:09:43.720 JUSTICE PATTERSON: So is it your that he mentioned in reviewing the evidence a trial 784 01:09:43.720 --> 01:09:49.447 judge showed to should you usua sponte case passion/provocation that the the 785 01:09:49.447 --> 01:09:52.373 trial court should view the evidence in the light Moyer favorable to defendant. 786 01:09:52.373 --> 01:09:55.030 KEVIN S. FINCKENAUER: Finckenauer I think that is generally what you sort 787 01:09:55.030 --> 01:10:00.324 of do naturally anyway when you look at this issue. JUSTICE WAINER-APTER: 788 01:10:00.324 --> 01:10:02.936 Sorry I just wanted to make sure I understand the Canfield. You're saying they 789 01:10:02.936 --> 01:10:08.508 adopted a new rule that this court say it one more time I wasn't understanding. 790 01:10:08.508 --> 01:10:13.519 Canfield adopted a new rule and even what does what did this court do. 791 01:10:13.519 --> 01:10:15.719 KEVIN S. FINCKENAUER: It was want discussed in this Court's opinion Rachel Wainer 792 01:10:15.719 --> 01:10:21.839 Apter but this court objection to form and then only added a a few perfect 793 01:10:21.839 --> 01:10:24.668 could you remember we ample of the Appellate Division's he does not decision 794 01:10:24.668 --> 01:10:29.669 thorough careful and we only add remembering few strat comments he. KEVIN S. 795 01:10:29.669 --> 01:10:32.690 FINCKENAUER: Well it seems to be tots the did not incorporate the are the a 796 01:10:32.690 --> 01:10:36.509 different new rule that was expressly rejected. JUSTICE WAINER-APTER: That's 797 01:10:36.509 --> 01:10:39.478 the thing that's registered though which otherwise we adopted the the Appellate 798 01:10:39.478 --> 01:10:43.403 Division's decision no? Upping that a lot Canfield at the beginning said that 799 01:10:43.403 --> 01:10:46.584 we expressly or adopt the thorough decision bid I had the Appellate Division 800 01:10:46.584 --> 01:10:49.454 aside from and then say that. KEVIN S. FINCKENAUER: My again I don't have 801 01:10:49.454 --> 01:10:55.029 the case in front of me but my recollection is that what this court said it 802 01:10:55.029 --> 01:11:01.633 was adopting did not necessarily expressly include this new rule and not even just 803 01:11:01.633 --> 01:11:07.517 because it doesn't spell name the new rule but what it says it was adopted 804 01:11:07.517 --> 01:11:11.948 I don't recall it as necessarily if encompassing the new royal. I would 805 01:11:11.948 --> 01:11:17.100 just say that for those reasons the Court should affirm of the majority opinion. 806 01:11:17.100 --> 01:11:23.254 CHIEF JUSTICE RABNER: Thank you Mr. Brown? RAYMOND M. BROWN: Good morning 807 01:11:23.254 --> 01:11:31.151 Your Honors. And I expressly address this to the chief and I believe you believe 808 01:11:31.151 --> 01:11:38.550 that amici should always be skunk. And I will follow that unarticulated add 809 01:11:38.550 --> 01:11:43.166 vocation. I wanted to say that this case is one that is close to my heart. 810 01:11:43.166 --> 01:11:48.993 I've been practicing for about five years with when Powell came down. That was 811 01:11:48.993 --> 01:11:54.800 from the days the first twenty years I was on trial for. But I do remember 812 01:11:54.800 --> 01:12:00.187 that a judge motioned myself and prosecute to the bench and said gentlemen 813 01:12:00.187 --> 01:12:03.149 I'm going to charge passion/provocation and we both had all kinds of reasons 814 01:12:03.149 --> 01:12:07.935 to for not doing it and the judge was correct of course. And it took me a while 815 01:12:07.935 --> 01:12:12.770 as it did our organization to mature as seeing ourselves as more than just 816 01:12:12.770 --> 01:12:18.142 advocates or partisans. For what Powell says and it is good law because this 817 01:12:18.142 --> 01:12:20.537 is, by the way, no one requested passion/provocation in Powell was that 818 01:12:20.537 --> 01:12:26.610 there is an interest that the justice system has in not pretty much a juror with 819 01:12:26.610 --> 01:12:29.569 a Hobson son's choice and it doesn't matter bat the strategic interests of the 820 01:12:29.569 --> 01:12:35.505 advocates are. What this court must do if it sees either a rational Baton 821 01:12:35.505 --> 01:12:39.579 Rouge or on review clearly indicated is a basis for charging it and that's a 822 01:12:39.579 --> 01:12:43.386 vitally important issue and I think sometimes we can looks track of it because as 823 01:12:43.386 --> 01:12:48.659 judges on appeal must look at the standards and waive evidence to some extent 824 01:12:48.659 --> 01:12:52.171 the is first blush analysis is is there anything on the the record that supports 825 01:12:52.171 --> 01:12:56.368 it what I saw the Appellate Division doing is there's evidence in the record 826 01:12:56.368 --> 01:13:00.862 that supports and clearly indicated. JUSTICE PATTERSON: But in a case where 827 01:13:00.862 --> 01:13:05.248 it is not requested clearly indicated the it the standard correct. RAYMOND 828 01:13:05.248 --> 01:13:07.976 M. BROWN: Absolutely. JUSTICE PATTERSON: So in this case we need not deal 829 01:13:07.976 --> 01:13:14.851 would rational basis. RAYMOND M. BROWN: I only mention that to divert 830 01:13:14.851 --> 01:13:19.484 the trial court -- and to say that they the nature of appellate he review I've never 831 01:13:19.484 --> 01:13:22.823 been anyone to do had it if they the criticize or support approximate when 832 01:13:22.823 --> 01:13:26.231 with with are there things in the record is there evidence in the record that 833 01:13:26.231 --> 01:13:29.418 would support this and then. JUSTICE WAINER-APTER: Is there any he evidence 834 01:13:29.418 --> 01:13:34.791 in the record that would support this seems to me to be the opposite of is it jumping 835 01:13:34.791 --> 01:13:37.977 off of the page. RAYMOND M. BROWN: Allow he many to respond directly 836 01:13:37.977 --> 01:13:44.349 to something you had said and it causes me to think as everything from his 837 01:13:44.349 --> 01:13:49.157 bench does. When you say that biting off of the finger would seem to be antithetical 838 01:13:49.157 --> 01:13:52.774 to family life which is part of the rubric that I think you've identified adds 839 01:13:52.774 --> 01:13:59.270 eye key part of the Appellate Division maternal, I say true although I've 840 01:13:59.270 --> 01:14:02.302 misbehaved on those I've never try to try to bite anyone's he does not fingering off. 841 01:14:02.302 --> 01:14:05.970 But in a moment of rage my conduct is not altercations to account going to 842 01:14:05.970 --> 01:14:10.810 be the rational. Nine reasonableness test the does a person who ceases had I family 843 01:14:10.810 --> 01:14:15.414 united including the welfare of his child and the health of his pair more 844 01:14:15.414 --> 01:14:20.012 threatened by the the conduct of drug dealing and drug use? And in fact there 845 01:14:20.012 --> 01:14:26.021 is not a person insisted building who is not at some point had a family member phren 846 01:14:26.021 --> 01:14:31.461 or someone they lo adversely affected bet drug use, drug sale or some way of scores 847 01:14:31.461 --> 01:14:34.877 of drugs many modern world and it seems to me that's at that time way of looking 848 01:14:34.877 --> 01:14:39.730 at the he objective. If we go 0 we get down to was he proked the conduct the 849 01:14:39.730 --> 01:14:43.571 obviously conducted that can be Don trucks to the the result of the provision 850 01:14:43.571 --> 01:14:46.973 and say he don't have ato account acin the completely logical way for that to be 851 01:14:46.973 --> 01:14:49.697 something that goes pror to to remember jury which is what we're talking about 852 01:14:49.697 --> 01:14:53.259 here not did we look at the merits so, for example. JUSTICE WAINER-APTER: 853 01:14:53.259 --> 01:14:58.556 Is there any evidence in the record to support which sounds like the opulence 854 01:14:58.556 --> 01:15:01.736 of is it clearly indicated. RAYMOND M. BROWN: Brown it is clearly indicated 855 01:15:01.736 --> 01:15:06.583 when you see put together all the the circumstances. When the on behalf of 856 01:15:06.583 --> 01:15:09.732 mentioned riding around the block and interaction parking lot later deceased 857 01:15:09.732 --> 01:15:12.184 person and telephone calls bot. JUSTICE PIERRE-LOUIS: Is it clearly 858 01:15:12.184 --> 01:15:17.177 indicated with had we have a record that doesn't even tell us watt provision is, 859 01:15:17.177 --> 01:15:22.676 it seems there seems seemed to be a lot of assumptions about what the provision 860 01:15:22.676 --> 01:15:30.328 is and we have M.L. testifying that the supposed provision what upset defendant 861 01:15:30.328 --> 01:15:34.865 after looking at her phone had nothing to do with the victim. It had to do 862 01:15:34.865 --> 01:15:42.688 with someone. So we have a trial judge who has before them this evidence that there 863 01:15:42.688 --> 01:15:48.070 was no provision about drugs possibly and own there May been through argument from 864 01:15:48.070 --> 01:15:52.796 the State on opening or summations which is not evidence in the record. So 865 01:15:52.796 --> 01:15:58.635 that I think that's the part of the problem here where the record itself the 866 01:15:58.635 --> 01:16:05.052 testimony, the evidence apprehend, seems to be devoid that provocation. We don't 867 01:16:05.052 --> 01:16:12.439 have that sunset substances here. RAYMOND M. BROWN: No I don't agree there 868 01:16:12.439 --> 01:16:15.539 were too many nuances to that statement. But I do agree important point president 869 01:16:15.539 --> 01:16:20.030 and the question is given we've had ninety minutes of vigorous discourse about 870 01:16:20.030 --> 01:16:24.287 the nature of the provocation or not. It seems to be to me the that the paragraph 871 01:16:24.287 --> 01:16:29.125 we keep citing to the Appellate Division adequately describes the possibly 872 01:16:29.125 --> 01:16:32.757 row Manhattan I can jealousy possibly concerns about the child's welfare being 873 01:16:32.757 --> 01:16:36.615 cared for about I a caregiver immersed the 234 either drug trader to drug use. 874 01:16:36.615 --> 01:16:42.472 That is reasonable as a basis for he person to be provoked. In fact was there 875 01:16:42.472 --> 01:16:49.112 provocation a person who contrary to what we know about prior conduct bites teaspoon 876 01:16:49.112 --> 01:16:53.907 to choke is his pair per hour drives around I started to say driving around 877 01:16:53.907 --> 01:16:58.800 I I was drawn also bit the chief's analogy the other day I was guilty to the 878 01:16:58.800 --> 01:17:02.682 elevator and I tell you, fellow you caught me in the middle of talking to myself. 879 01:17:02.682 --> 01:17:07.225 Now I'm sure no one else has ever done that but fascinate what with agitated when 880 01:17:07.225 --> 01:17:14.085 we're focused in a state of vitamin we do a I'll kinds of things that may not 881 01:17:14.085 --> 01:17:17.872 it makes sense eye logical point of view. Did it seems to me there is a perpetual 882 01:17:17.872 --> 01:17:23.778 following this revelation but what M.L. was doing and its possible imbrications 883 01:17:23.778 --> 01:17:27.236 and this person figure from hit and did it and onand exhibited my phone calls 884 01:17:27.236 --> 01:17:34.893 other ways all manner of kinetic 245 speaks provision and the question is not I 885 01:17:34.893 --> 01:17:40.914 submit do we believe it beyond a reasonable doubt but but what has happened 886 01:17:40.914 --> 01:17:44.769 below had drived a jury a chance to assess it because ultimatum that's what 887 01:17:44.769 --> 01:17:50.692 we're talking about because this jury was given a Hobson's choice. JUSTICE 888 01:17:50.692 --> 01:17:53.560 HOFFMAN: Are you saying it doesn't matter what he was provoked by as long as 889 01:17:53.560 --> 01:17:59.825 he was enraged beyond control because I will tell you it's a real stretch. 890 01:17:59.825 --> 01:18:02.504 RAYMOND M. BROWN: I can say no to that one justice because I'm saying that we have 891 01:18:02.504 --> 01:18:07.021 and not unlimited couple a fairly expansive use-of-force of what are appropriate 892 01:18:07.021 --> 01:18:11.623 what we consider reasonable provocations. I remember in the the seventies 893 01:18:11.623 --> 01:18:17.941 a big debate but whether a eye generate bathe. Want abandon versus sexual 894 01:18:17.941 --> 01:18:20.976 jealous maybe and we certainly have an element of concern about the care give who 895 01:18:20.976 --> 01:18:24.490 is caring for his child. Those are reasonable. JUSTICE WAINER-APTER: 896 01:18:24.490 --> 01:18:33.528 Like the elements aren't I think the. JUSTICE WAINER-APTER: It seems like 897 01:18:33.528 --> 01:18:36.834 the elements of the passion/provocation are not just, you know, could someone 898 01:18:36.834 --> 01:18:41.349 be upset and were they actually upset it's the provocation must be adequate 899 01:18:41.349 --> 01:18:46.079 to a reasonable person. So again what we're asking here is what was the provocation 900 01:18:46.079 --> 01:18:51.484 in the record that would be adequate to a reasonable person at a level that 901 01:18:51.484 --> 01:18:54.782 is jumping off of page. RAYMOND M. BROWN: Is defendant's brief is full 902 01:18:54.782 --> 01:18:59.502 of you citations to cases and commentary about the reasonableness of evacuation with 903 01:18:59.502 --> 01:19:05.398 drugs as being the use-of-force of things that may drive a person to a reasonable. 904 01:19:05.398 --> 01:19:08.344 JUSTICE WAINER-APTER: So was there testimony that defendant had never 905 01:19:08.344 --> 01:19:15.246 known no M.L. had ever done because you guys he learned will only on this day. 906 01:19:15.246 --> 01:19:17.302 RAYMOND M. BROWN: Don't know. JUSTICE PIERRE-LOUIS: And here we have 907 01:19:17.302 --> 01:19:25.772 defendant's own statements after the murder indicating that maybe the blow 908 01:19:25.772 --> 01:19:31.699 to his pride was the provocation dating you made .44 look bad. I'm not saying 909 01:19:31.699 --> 01:19:38.379 all the words in this quote. You made me look bad by doing dope behind my blank 910 01:19:38.379 --> 01:19:43.856 back. I wish was it Coke. So I think we all understand how horrible drug use and 911 01:19:43.856 --> 01:19:49.134 how drugs impact the lives of many people and family members but in his own 912 01:19:49.134 --> 01:19:54.725 words he's saying I wish just no dope I wish it it was Coke because somehow 913 01:19:54.725 --> 01:20:00.342 it seemed to be a blow to his pride that she was getting heroin. RAYMOND M. 914 01:20:00.342 --> 01:20:03.522 BROWN: That would be a fair thing to the state to raise in response on going 915 01:20:03.522 --> 01:20:08.236 to the injure? Passion/provocation. When with he talk about rage I think it's 916 01:20:08.236 --> 01:20:11.967 all suited to the the rage below and say not so much who have but the the state 917 01:20:11.967 --> 01:20:16.940 is entitled to say it's rage but it's not provocation it's not passion/provocation 918 01:20:16.940 --> 01:20:21.275 but that he saysacies jury question once going to do beyond a certain threshold 919 01:20:21.275 --> 01:20:25.998 and yes, there is a corpse here because it this which man was of us why not are 920 01:20:25.998 --> 01:20:31.877 after coming back from some time away with the he haved of possibly a jealous 921 01:20:31.877 --> 01:20:35.251 but more importantly drug use of some kind either sale or use by the I had 922 01:20:35.251 --> 01:20:40.217 the caregivers of his child and that's reasonable provocation I don't think 923 01:20:40.217 --> 01:20:44.129 anybody could quarrel with that and in fact it happened. JUSTICE HOFFMAN: 924 01:20:44.129 --> 01:20:49.067 Doesn't he have to be provoked by something that the victim did? RAYMOND M. 925 01:20:49.067 --> 01:20:52.661 BROWN: No there's no case law that says that. JUSTICE HOFFMAN: He can 926 01:20:52.661 --> 01:20:56.834 be just provocative let me be clear. RAYMOND M. BROWN: It's only because 927 01:20:56.834 --> 01:21:04.866 the time pressure. JUSTICE HOFFMAN: He can be are you saying that 928 01:21:04.866 --> 01:21:13.453 he can be provoked by the fact that Donald called his pair more and then shoot the 929 01:21:13.453 --> 01:21:17.671 victim because of that and get eighteen passion/provocation defense? RAYMOND 930 01:21:17.671 --> 01:21:22.989 M. BROWN: Well,th aspect of the victim let me annals that in two parts. The victim 931 01:21:22.989 --> 01:21:29.923 is Gonzalez. Is relevant to the fact that there was -- Gonzalez is actually involved 932 01:21:29.923 --> 01:21:33.982 in the drug dealing with a M.L. but more to the point, it doesn't have to be 933 01:21:33.982 --> 01:21:39.711 our case law does not require that the victim we're not talking about 934 01:21:39.711 --> 01:21:42.934 exoneration here. We're talking about the culpable mental state to the accused and 935 01:21:42.934 --> 01:21:48.710 if it happened to be somebody that was not remote ant Cal involved but of us 936 01:21:48.710 --> 01:21:53.850 involved envelopedth drug dealing it might be to the for the jury to parse 937 01:21:53.850 --> 01:21:59.145 those out or it might the foot two things that happened to the same time so a draw. 938 01:21:59.145 --> 01:22:02.454 JUSTICE PATTERSON: Is there any case I'm just trying to get Louty memory 939 01:22:02.454 --> 01:22:05.956 of the 69 various passion/provocation cases that this Court and the Appellate 940 01:22:05.956 --> 01:22:11.299 Division have decided is there ever been a indication where the victim is not 941 01:22:11.299 --> 01:22:20.536 involved in the provocation but it was enough to have a lesser included charge 942 01:22:20.536 --> 01:22:26.858 that the person was angry at person A and then somehow killed person B how a general 943 01:22:26.858 --> 01:22:29.769 rage against the world? RAYMOND M. BROWN: I was having this conversation 944 01:22:29.769 --> 01:22:35.898 with co-counsel last night and he says you must read coil and on coil seems to to 945 01:22:35.898 --> 01:22:39.315 guess that the relationship of the victual is to the provocation is not dispositive 946 01:22:39.315 --> 01:22:44.446 but in this case as we do a nexus. JUSTICE PATTERSON: But in coil was 947 01:22:44.446 --> 01:22:49.579 awn involved person. RAYMOND M. BROWN: Quickly last night. JUSTICE 948 01:22:49.579 --> 01:22:53.565 PATTERSON: The suggestion here is that someone could be angry at person A and 949 01:22:53.565 --> 01:23:00.229 then go mow down somebody with his car who has just uninvolved. RAYMOND M. BROWN: 950 01:23:00.229 --> 01:23:04.603 I don't think our courts have said that you cannot have as the victim in a case 951 01:23:04.603 --> 01:23:09.458 of passion/provocation someone who did not provocative. I don't know but I 952 01:23:09.458 --> 01:23:13.382 don't think that's the fact here. The fact horror is that Gonzalez was involved 953 01:23:13.382 --> 01:23:17.809 in the drug deal with M.L. He was involved. And there were further communications 954 01:23:17.809 --> 01:23:22.549 between the two of them between his learning first of this fact and the end 955 01:23:22.549 --> 01:23:27.193 of and the end of Gonzalez. So I would say he don't have to reach that issue. 956 01:23:27.193 --> 01:23:34.543 It's not here. And I would submit it is clearly indicated. I mean, again I think 957 01:23:34.543 --> 01:23:39.150 the danger here and I cannot I'm not in a position to ever admonish this Court 958 01:23:39.150 --> 01:23:43.991 but I think the danger of assisted how he would argue this case if it went 959 01:23:43.991 --> 01:23:48.946 to the jury cannot supersede the fact that the jury was not given the choice 960 01:23:48.946 --> 01:23:55.807 which is seb inures not to the just to the aadvantage of the 69 used but to the 961 01:23:55.807 --> 01:24:00.308 advantage of state and society that the jury be given a meaningful choice. 962 01:24:00.308 --> 01:24:08.679 CHIEF JUSTICE RABNER: Thank you Mr. Brown. MATTHEW S. SAMEL: I WILL BE BRIEF. 963 01:24:08.679 --> 01:24:13.628 I JUST WANTED TO TOUCH ON A COUPLE OF THINGS THAT CAME UP IN QUESTIONS AND 964 01:24:13.628 --> 01:24:20.013 MENTIONED IN THE DEFENSE'S ARGUMENT. SO, FIRST, WITH REGARD TO STATE V VEE 965 01:24:20.013 --> 01:24:27.173 AIR RA, THAT WAS A RATIONAL BASIS REVIEW THAT WAS NOT CLEARLY INDICATED. I 966 01:24:27.173 --> 01:24:32.385 ALSO WANT TO REFERENCE STATE V. CANFIELD. THERE ARE ONLY THREE CASES IN THE LAST 30 PLUS 967 01:24:32.385 --> 01:24:39.366 YEARS THAT HAVE REVERSED A TRIAL CONVICTION UNDER THE CLEARLY INDICATED STANDARD ON PLAIN 968 01:24:39.366 --> 01:24:45.196 ERROR. IT IS A VERY RARE FORM OF RELIEF THAT IS AFFORDED FOR A UNIQUE SET OF CIRCUMSTANCES. 969 01:24:45.196 --> 01:24:53.373 IT HAS HOB OVERWHELMING AND UNDER THE CLEAR IT NEEDS TO BE JUMPING OFF THE PAGE. IT 970 01:24:53.373 --> 01:24:59.681 NEEDS TO BE OBVIOUS. THE FACTS HERE ARE NOT OBVIOUS. OBVIOUSLY GEARED TOWARD 971 01:24:59.681 --> 01:25:04.289 PASSION/PROVOCATION AND THE DEFENDANT THAT THE DEFENDANT DIDN'T WANT IT. 972 01:25:04.289 --> 01:25:11.449 JUSTICE PATTERSON: YOU HEARD YOUR COLLEAGUE'S ARGUMENT ABOUT CANFIELD. 973 01:25:11.449 --> 01:25:16.536 MATTHEW S. SAMEL: KAN FIELD WAS ADOPTED BY THE COURT ASIDE FROM THAT ONE RULE WHICH THE 974 01:25:16.536 --> 01:25:19.589 APPELLATE DIVISION OPPOSED. JUSTICE WAINER APTER: WHICH HAD NOTHING TO 975 01:25:19.589 --> 01:25:22.807 DO WITH WHAT DEFENSE COUNSEL WAS ARGUING. MATTHEW S. SAMEL: CORRECT. 976 01:25:22.807 --> 01:25:26.037 JUSTICE WAINER APTER: IT WAS ABOUT TRIAL JUDGES SHOULD ALWAYS DECIDE WHETHER OR NOT IT 977 01:25:26.037 --> 01:25:32.922 WAS JUMPING OFFER THE PAGE EVEN IF IT IS EXPLICITLY REQUESTED THAT IT NOT BE GIVEN. 978 01:25:32.922 --> 01:25:36.317 MATTHEW S. SAMEL: YES. IN CANFIELD THEY ALSO TUBING ABOUT HOW ON THE CLEARLY 979 01:25:36.317 --> 01:25:41.357 INDICATED STANDARD BEYOND VIEWING IT IN THE LIGHT MOST FAVORABLE FOR THE DEFENDANT WAS 980 01:25:41.357 --> 01:25:46.373 NOT APPLICABLE. WE'RE NOT TO CONSIDER KREBLTD OF EVIDENCE JUST THE EXISTENCE OF THE EVIDENCE. 981 01:25:46.373 --> 01:25:52.499 IT IS NOT TO CONSIDER WHETHER M.L. WAS BEING HONEST OR LOOIING ABOUT WHAT SHE WAS SAYING 982 01:25:52.499 --> 01:25:58.352 IN RELATION TO TO DONALD. THAT WAS THE EYEWITNESS THAT WAS THERE AND SHE SAYS IT WAS 983 01:25:58.352 --> 01:26:01.447 ABOUT DONALD. JUSTICE PATTERSON: PART OF YOUR POSITION IS THAT THE APPELLATE 984 01:26:01.447 --> 01:26:05.418 DIVISION APPLIED THE WRONG STANDARD. MATTHEW S. SAMEL: YES AND AS TO WHY 985 01:26:05.418 --> 01:26:10.077 IT IS JUST NOT SIMPLY INDICATED BY THE EVIDENCE. FURTHERMORE, THERE WERE QUESTIONS 986 01:26:10.077 --> 01:26:16.867 ABOUT THE PHONE CALLS THAT WERE HAD BETWEEN THE DEFENDANT AND GONZALEZ IN THOSE 40 PLUS 987 01:26:16.867 --> 01:26:23.402 MINUTES BETWEEN THE SUPPOSEDLY PROVOKING EVENT AND THE MURDER. NOW WE CAN'T SAY WHAT 988 01:26:23.402 --> 01:26:29.054 WAS SAID OVER THOSE PHONE CALL, BUT IT'S REASONABLE TO INFER THAT BASED ON GONZALEZ 989 01:26:29.054 --> 01:26:34.400 COMING OUT OF HIS HOUSE WE KNOW THAT HE WAS NOT ARMED BECAUSE HIS BODY WAS THERE, EXAMINED 990 01:26:34.400 --> 01:26:39.478 BY THE MEDICAL EXAMINER AND HE DID NOT HAVE ANY WEAPONS ON HIM. HE DID NOT INTERPRET 991 01:26:39.478 --> 01:26:44.836 WHATEVER SAID ON THOSE CALLS TO BE OF A VIOLENT OR CONFRONTATIONAL OR TO BELIEVE THAT 992 01:26:44.836 --> 01:26:51.656 HIS SAFETY WAS IN SOMEHOW IN JEOPARDY HE COMES OUT OF TWO BRICKS MUCH HEROIN THAT ARE 993 01:26:51.656 --> 01:26:56.732 PACKS FOR DISTRIBUTION SO THERE IS A REASONABLE INFERENCE THAT BASED ON M.L. TEXTING 994 01:26:56.732 --> 01:27:03.094 GONZALEZ, HERE IS MY BABY DADDY'S NUMBER, HIS NAME IS MIKE YOU GUYS SHOULD LINK UP ABOUT 995 01:27:03.094 --> 01:27:08.164 DRUGS AND TESTIFYING ABOUT THAT, THIS WAS, INSTEAD MAYBE A CONVERSATION ABOUT HEAVEN 996 01:27:08.164 --> 01:27:12.335 SALES AN FURTHER THERE IS NO EVIDENCE IN THE RECORD WHY WE CAN ASSUME AND MAKE SOME 997 01:27:12.335 --> 01:27:18.354 INFERENCES THAT M.L. WAS MAYBE USING DRUGS SHE NEVER TOLD US THAT AT TRIAL. SHE TELLS 998 01:27:18.354 --> 01:27:23.905 US THAT SHE HAD A PRIOR CDS CONVICTION FROM YEARS EARLIER AND WAS IN DRUG COURT. SHE 999 01:27:23.905 --> 01:27:28.588 NEVER SAID SHE WAS USING THE DRUGS THAT GONZALEZ WAS SELLING HER. ONLY THAT SHE WAS RESELLING 1000 01:27:28.588 --> 01:27:33.920 THEM TO EARN A LITTLE EXTRA MONEY ON THE SIDE AND FURTHER JUST THE ASSUMPTIONS RELATED 1001 01:27:33.920 --> 01:27:40.385 TO THE FAMILY STRUCTURE. THERE WAS JUST SIMPLY NO EVIDENCE OF THAT. WE HAVE 1002 01:27:40.385 --> 01:27:45.876 EVIDENCE THAT M.L. WAS M.L. WAS THE SOLE CAREGIVER FOR THE TRIAL, IN ALL RESPECTS SHE 1003 01:27:45.876 --> 01:27:50.918 WAS DOING QUITE WELL FOR HERSELF. SHE WAS A MANAGER AT A BEAUTY COMPANY. SHE WAS PAYING 1004 01:27:50.918 --> 01:27:57.017 FOR HER HOUSE IN HAMILTON IN A NICE NEIGHBORHOOD. HER CAR, HER KID WAS HEALTHY. SHE 1005 01:27:57.017 --> 01:28:01.236 WAS SUFFERING NO REAL OBSERVABLE HARM AT THAT TIME. THE DEFENDANT DIDN'T WALK 1006 01:28:01.236 --> 01:28:06.685 IN ON HER OVER DOSING OR STRUNG OUT OR ANYTHING LIKE THAT. SHE WAS DOING WELL UNTIL HE 1007 01:28:06.685 --> 01:28:12.129 INFLICTED THOSE INJURIES UPON HER AND I WOULD JUST SUM UP BY SAYING HOW DRASTIC OF A JUMP 1008 01:28:12.129 --> 01:28:15.993 THIS WOULD BE FROM OUR KS I SEE. ING CASE LAW ON PASSION/PROVOCATION. THE 1009 01:28:15.993 --> 01:28:21.871 TYPE OF ADEQUATE PROVOCATION THAT IS PROPOSED BY THE MAJORITY IS SIMPLY SUCH A LARGE JUMP 1010 01:28:21.871 --> 01:28:27.615 FROM ANYTHING THAT HAS BEEN EVEN CONTINUE TEMP PLAYED BY PRIOR COURTS AND BASED ON THE 1011 01:28:27.615 --> 01:28:32.495 FACTS PRESENTED IN THIS CASE AT TRIAL IT IS SIMPLY NOT THE CASE TO TAKE THAT JUMP ON AND 1012 01:28:32.495 --> 01:28:37.382 THANK YOUR HONORS OR FOR THE TIME. CHIEF JUSTICE RABNER: THANK YOU. 1013 01:28:37.382 --> 01:28:41.213 THANK YOU ALL COUNSEL FOR YOUR HELPFUL ARGUMENTS. THE COURT IS IN RECESS FOR 1014 01:28:41.213 --> 01:28:44.213 THE DAY.