Commonwealth v. Read — Trial ArchiveProcedural — Motions
130 linesP R O C E E D I N G S JUNE 20, 2024 EXCERPT:
(Court and counsel in at 9:06 a.m. with no jury)
COURT CLERK: May I call the case, Your Honor?
JUDGE CANNONE: Yes, please.
COURT CLERK: For the record, before the Court is Commonwealth vs. Karen Read, 2282CR00117. The parties are present, the jury is not present. Counsel has asked to see you.
JUDGE CANNONE: Did you want to see me at sidebar?
MR. YANNETTI: Briefly at sidebar or in open court.
JUDGE CANNONE: Why don’t I see you up here.
MR. YANNETTI: Sure.
SIDEBAR CONFERENCE:
JUDGE CANNONE: Good morning.
MR. YANNETTI: Good morning, Your Honor. Mr. Lally on Tuesday provided basically a list and the documents that he intends to introduce or use through Trooper Guarino.
JUDGE CANNONE: Okay.
MR. YANNETTI: There’s one entry in particular that we are objecting to.
JUDGE CANNONE: Do you have it with you? Why don’t you grab it.
MR. YANNETTI: He has it. I’ll just get my reading glasses up here.
JUDGE CANNONE: Okay. Maybe you keep them in your pocked?
MR. YANNETTI: I should, yes, but then they’d get crushed, Your Honor.
JUDGE CANNONE: So Mr. Lally, why don’t you tell me what this is?
MR. LALLY: Well, Your Honor, essentially the –
JUDGE CANNONE: You need to keep your voice up.
MR. LALLY: Sure.
JUDGE CANNONE: Especially flipping the pages near the microphone. It drives the court reporter crazy.
MR. LALLY: My apologies. Your Honor, what this is is part of the extraction report from the defendant’s phone with a web search history. In particular, there are web searches that the defendant does at 1 p.m. on the 29th in respect to – the one in particular that I’m looking for is essentially ‘DUI lawyers near me’.
JUDGE CANNONE: Okay.
MR. LALLY: So what I had done is I had sent this to counsel and to the Court just to flag it because I wanted to avoid a lengthy sidebar conference with the jury in the room, understanding that I think it’s admissible. I think it goes, you know, as far as what the Court has to consider is whether it’s more probative and overly prejudicial, and assuming that counsel would object to it, I just wanted to raise it for the Court before we got to this point.
JUDGE CANNONE: I appreciate that. What’s your objection?
MR. YANNETTI: So my objection, Your Honor, is in part based on the timing of this search because no such search was done until she received a call from Trooper Michael Proctor. Once she received a call from the State Police, she didn’t google criminal defense attorneys or murder defense attorneys or homicide defense attorneys. She googled DUI defense attorneys after having heard from the police. It did not lead to her hiring me. She didn’t find me in that search. And it was only done after she got contact from the police which, you know, you get a call from the State Police, and not only is it your right to be represented, but anybody with half a brain would –
JUDGE CANNONE: I’m familiar –
MR. YANNETTI: Of course, of course.
JUDGE CANNONE: All right, so I’m going to keep it out in your case in chief.
MS. MCLAUGHLIN: Your Honor, if I may?
JUDGE CANNONE: Yes.
MS. MCLAUGHLIN: I do have cases to support its admission as to probative value. I do think in this case it exceeds the prejudicial value. It’s not a typical case where the defendant claims they committed an accident. The defense is that the defendant’s vehicle never struck John O’Keefe. It goes to rebutting a Bowden defense. It goes to rebutting the improprieties of what the defense claims of the investigation. It goes against the allegation that the defendant has been framed. In these circumstances, the probative value does exceed the prejudicial value, and I do have two cases to support the admission of it from the Commonwealth’s standpoint. Further, at the time of the search, the defendant is legally intoxicated that morning. It goes to her state of mind that she begins to sober up in the afternoon, perhaps understanding what may have occurred. So I do think it’s relative and highly probative to her state of mind at the time the search is conducted. Further, it’s prior to her having sat down and voluntarily giving that interview to the State Police.
JUDGE CANNONE: That’s a different argument.
MR. YANNETTI: Not really. What relevance is it that somebody intends to defend the presumption of innocence? What is the inference that the Commonwealth is asking this jury to draw? They’re asking this jury to draw that the police contact her, she was out the previous night, and they’re asking to infer guilt or consciousness of guilt by virtue of the fact that she seeks out representation.
MS. MCLAUGHLIN: I can give you citations.
JUDGE CANNONE: Go ahead and continue, Mr. Yannetti.
MR. YANNETTI: Well, no, I’m just reading over the bench here, and I notice, first of all that at least one of the cases deals with the standard of a substantial risk of a miscarriage of justice in terms of how they decided the case. I would like an opportunity to review those cases.
JUDGE CANNONE: Sure. All right, so we can address this at the morning break. So again, Ms. McLaughlin, tell me the reasons – rebutting the Bowden defense, tell me the reasons that you think this is, because as you know under that footnote in Samia I have to make a little bit more of a record here.
MS. MCLAUGHLIN: Yes, Your Honor. I think this is an unusual circumstance where the defense has been that the defendant’s vehicle never struck John O’Keefe, that she’s being framed for these charges, that there is no evidence of any type of motor vehicle offense or any intent to commit any of these crimes.
JUDGE CANNONE: Slow down.
MS. MCLAUGHLIN: Essentially someone else – what the defense has represented is that she’s being framed, and perhaps the dog is what inflicted the injuries. This google search rebuts the defense of one, she’s been framed. It goes to her state of mind, and also rebuts the Bowden defense that, as the defendant has claimed, that the police did not do a proper search, they did not search and investigate any other individuals. It goes to the fact that there is compelling evidence that the defendant is the only one culpable for John O’Keefe’s death and her state of mind hours after becoming aware that John has passed.
JUDGE CANNONE: So Ms. McLaughlin, what I would like from you is a proposed instruction as to what I tell the jury, and typically bad acts I tell them it can only be for this particular purpose. You’re asking me to tell them, and I have not decided yet whether I’m going to.
MR. YANNETTI: If I can have an opportunity to be heard?
JUDGE CANNONE: Of course. I want you to read the cases. I’m familiar with Keown, but I want to read the other.
MR. YANNETTI: Sure.
JUDGE CANNONE: So this isn’t something any of us should rush into. So I really appreciate you flagging it, Mr. Lally. So I’d like you to tell me what specifically you would like me to tell the jury that they can consider this for. So you’re not even saying consciousness of guilt at this point, right?
MS. MCLAUGHLIN: I am, I am. It does go to her consciousness of guilt.
JUDGE CANNONE: If I give this instruction and if I say it goes to consciousness of guilt, I’d like the defense to let me know whether they would like me to give a consciousness of guilt instruction at the same time or later. So this is what I want you all to do so we can have another discussion on this.
MR. YANNETTI: Sure, sure.
JUDGE CANNONE: And this is the extraction of the phone, so the defense has had this.
MS. MCLAUGHLIN: The defense has had it longer than the Commonwealth has had access to this. So I’d say they’ve had the information approximately two years.
MR. YANNETTI: We haven’t raised that issue in our objection.
JUDGE CANNONE: No, that’s what I was wondering, because I was told it might have been a discovery violation that we would be here on. So what is the date and time of the search? 1/29, but what time?
MS. MCLAUGHLIN: January 29, 2022.
JUDGE CANNONE: Right. But what time?
MR. LALLY: 1:24 p.m.
JUDGE CANNONE: And Mr. Yannetti, you say this is after Proctor has called her?
MR. YANNETTI: I believe it’s about five minutes later.
JUDGE CANNONE: When he called her or he showed up?
MR. YANNETTI: No. He calls her at 1:19, I believe that was the time.
JUDGE CANNONE: All right, so get all of this for me. We can take more time. We can take a longer break or, you know, an issue break. I think this sort of falls on Ms. Little and Ms. McLaughlin to just go through everything. You seem to be the ones that have immediate access to the records to find these things out. So if you could just find that out, the time that Proctor called her. I don’t know that’s in evidence now?
MR. YANNETTI: Not yet.
JUDGE CANNONE: About Proctor calling her at that time?
MR. YANNETTI: Correct, not yet. It’s not yet in evidence, but it will be.
JUDGE CANNONE: Through who?
MR. YANNETTI: Through Guarino.
JUDGE CANNONE: Oh, okay, so you’re going to touch upon that anyway, regardless of what this is?
MR. YANNETTI: Only for the purpose of the time of that call and there were no google searches prior to him calling.
JUDGE CANNONE: Even if I don’t admit this you’re going to do that?
MR. YANNETTI: Not if it causes the Court to admit that.
JUDGE CANNONE: No, it doesn’t cause me to admit it.
MR. YANNETTI: Even if it militates in that favor, I don’t see why it would.
JUDGE CANNONE: No, I just wanted clarity whether you intended – you said it’s not in “yet”.
MR. YANNETTI: If I can just talk it over.
JUDGE CANNONE: Yes.
(Defense counsel confer.)
MR. YANNETTI: I will defer to my co- counsel and report that the only reason we would need that in is if they try to get in the search. COURT REPORTER: “They try to” what? I’m sorry.
MR. YANNETTI: To bring the other search in, the 1:24 search in.
JUDGE CANNONE: You banged that while you said that.
MR. YANNETTI: I’m sorry.
JUDGE CANNONE: Okay, so that’s different angle, and your co-counsel caught it.
MR. YANNETTI: Yes.
JUDGE CANNONE: All right. So we will address those not before the break, and if you –- How much longer do you have with him?
MR. LALLY: I have roughly an hour.
JUDGE CANNONE: Okay. So we make sure we take the break?
MR. LALLY: I’ll alert the Court if I have nothing else but that.
JUDGE CANNONE: Okay. There is a slight possibility, maybe more than slight, that what I have scheduled tomorrow afternoon might have to be continued, and we can maybe get a full day in, which would be great. So we don’t know. Unless you can’t; unless your witnesses can’t based on what we have. If there’s a single juror who made plans, then we won’t.
MS. LITTLE: We just – I think we’ll need a ruling. We’ll probably just need a ruling in terms of our experts because that’s a large bulk of our witnesses to see who we can get here tomorrow if that’s the case.
JUDGE CANNONE: Did you not plan on having anybody here tomorrow?
MS. LITTLE: No, we did.
MR. YANNETTI: We can have Rick Green here tomorrow. He’s our second witness.
MR. JACKSON: If I may?
JUDGE CANNONE: Yes.
MR. JACKSON: As it pertains to Doctor Russell, she would be right after that, so that’s the only thing that –
JUDGE CANNONE: So I –
MR. JACKSON: We could make arrangements to get her quickly. I just need to sort of know.
JUDGE CANNONE: Well, she’s local now, right?
MR. JACKSON: In New York-ish.
JUDGE CANNONE: All right, so I will say just briefly what my rulings are now on what happened with the voir dire. I’ll do that in open court now, and we can line up the jurors. Are we all set on this issue?
MR. LALLY: Yes.
JUDGE CANNONE: And again, I appreciate you flagging it, and I appreciate you giving me copies of the cases. And we’ll take a decent morning break.
MR. YANNETTI: Okay, sounds good.
MR. JACKSON: And Your Honor, I don’t expect a ruling right now, but I am going to ask the Court pretty quick the parameters of closing argument. We’re getting to that direction, and I need to know for my purposes kind of how much time we’re going to have.
JUDGE CANNONE: An hour. No more than an hour. No more than an hour. I’ve never done more than an hour. I’ve never – Massachusetts, one hour is the limit it seems. The jury has heard it.
MR. JACKSON: Even in a case this complex? I wasn’t going to ask for four hours. I was going to ask for two.
JUDGE CANNONE: Not two hours; one hour. I have had cases that are more complex that have been one hour. One hour. It’s a challenge for you, but –
MR. JACKSON: It is. In this case it is.
JUDGE CANNONE: I know these lawyers can do it. That’s where I’m at. So we can discuss it again when we have the charge conference. But that’s where I’m at. Is the Commonwealth looking for two hours as well?
MR. LALLY: No.
JUDGE CANNONE: Because you’re used to an hour.
MR. JACKSON: You’re not helping, Adam.
MR. LALLY: I’m sorry.
JUDGE CANNONE: All right. So we’ll make it quick. I’m going to line the jurors up. I’ll let you know where I stand as of now.
MR. JACKSON: Okay, good.
MR. LALLY: Thank you, Your Honor.
JUDGE CANNONE: We can line them up.
END SIDEBAR CONFERENCE.
// IN OPEN COURT WITH NO JURY PRESENT:
JUDGE CANNONE: So moving on to the voir dire motion the other day, the voir dire hearing. In response to the Commonwealth’s renewed motion for reciprocal discovery and motion to exclude defendant’s expert, Doctor Marie Russell. So the Commonwealth was alleging violations of Rule 14's reciprocal discovery requirement, and the Commonwealth asked for exclusion of Doctor Russell. I did find and do find that there was a violation of the reciprocal discovery obligations of the defendants. I was looking for a remedy. You called it a sanction, Mr. Jackson, but I called it a remedy. And I did tell counsel, as you know, at sidebar a couple of times at least last week that I did not want to exclude the testimony if I did not have to. So we had the voir dire, and I am satisfied that the voir dire provided the Commonwealth the information that the defense should have provided the Commonwealth. So I am going to allow Doctor Russell to testify, but her testimony is very limited.
And I think you even sort of acknowledged it the other day, Mr. Jackson. So she will be allowed only to opine whether or not the marks on John O’Keefe’s arm were the result of an animal attack. I find that she is a medical doctor, she is an experienced ER doctor, albeit several years ago since she’s worked in that capacity, that she does have specialized knowledge in that field that may assist the jury in this regard. But she can’t testify as an expert on police activity. There’ll be none of that. And she will not be able to testify as to what the injuries are inconsistent with. She cannot testify that they are inconsistent with having been struck by a vehicle, road rash, scratches from broken glass or taillight matter or anything else. That’s beyond the scope of what she can testify to.
The second part of the Commonwealth’s motion, the Commonwealth argued that they were not provided reciprocal discovery regarding the biomechanical engineers and others, but specifically ARCCA, Doctor Wolfe and Doctor Rentschler. And I do find, though I understand why the defense didn’t respond, but it is a violation of Rule 14, so we had this voir dire. The Commonwealth was looking to see what each person did, their independent opinion, what their testimony would be, and whether they were qualified to render the opinions that they qualified. So from what I heard the other day, Dr. Wolfe can testify to his involvement. Doctor Rentschler, though, I have some concerns. It’s clear to me that in Massachusetts biomechanical engineers are not qualified to testify as to medical causation of an injury. Only an M.D. can do that. So I’m going to reserve ruling on the rest of his testimony. There are certain things he can testify, and I’ll hear you again before he testifies next week. Let’s just proceed with the trial today.
MR. JACKSON: Yes, Your Honor. Thank you.
JUDGE CANNONE: So those are my rulings. Are they clear, Mr. Jackson?
MR. JACKSON: They’re clear, Your Honor.
JUDGE CANNONE: Are they clear, Mr. Lally?
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: All right, so are we ready?
COURT OFFICER: All rise. Jurors entering.
(Jury in.)
JUDGE CANNONE: All right. Good morning again, Counsel and Ms. Read. Good morning, jurors. So we appreciate that you were patient, that we got a lot of work done this morning before you came out. It's cool in here now. As long as you're away from the sun from the windows, it should be fine. The county has done a really terrific job of making sure that they got this building nice and cool for us today, so I appreciate what the county's done as well. I do have to ask you those three questions. Were you all able to follow my instructions and refrain from discussing this case with anyone since we left on Tuesday? THE JURY: Yes.