Commonwealth v. Read — Trial ArchiveAndrew Rentschler — Direct/Cross
609 lines(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: How long do you think you'll be with him?
MR. JACKSON: Less time than with Dr. Wolfe.
JUDGE CANNONE: Okay. How long do you think you'll be with him?
MR. LALLY: Probably a little bit less than Dr. Wolfe.
JUDGE CANNONE: I'd like to go a little past one if we can because I have a short matter at two. So even as long as maybe 1:20.
MR. JACKSON: That's great.
JUDGE CANNONE: Can we finish in an hour if we go to 1:20 or so?
MR. JACKSON: I will agree to "get her done."
MR. LALLY: His order of proof is 10 pages on this witness and it's about 15 on the other.
JUDGE CANNONE: Okay.
MR. LALLY: Yes. It's about two-thirds.
JUDGE CANNONE: Can we do that or you don't know yet?
MR. LALLY: I don't know until he testifies but I presume we can.
JUDGE CANNONE: Because it would be great if we didn't have to bring the jurors back.
MR. JACKSON: My goal is to get it done. Sol may curtail some of my direct and just get to the point.
JUDGE CANNONE: I'm not suggesting you do that at all.
MR. JACKSON: No. It's my decision. I don't feel any pressure by the Court. So thank you for that.
JUDGE CANNONE: Okay. All right. Let's see what we can do.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Jurors, I'm hoping maybe we go a little past one to keep going with this if that's okay. Everybody's nodding. All right. Thank you.
Whereupon, ANDREW RENTSCHLER having been first duly sworn, was examined and testified under oath as follows:
DIRECT EXAMINATION BY MR. JACKSON:
MR. JACKSON: Doctor, could you please state your first and last name, spelling your last name for the record, please?
DR. RENTSCHLER: Certainly. Andrew Rentschler, R-E-N-T-S-C-H-L-E-R.
MR. JACKSON: And what do you do for a living, sir?
DR. RENTSCHLER: I'm a biomechanical engineer and accident reconstructionist.
MR. JACKSON: And who do you work for?
DR. RENTSCHLER: I work for a company called ARCCA, LLC.
MR. JACKSON: How long have you been in that position as the -- well, working for ARCCA, first of all.
DR. RENTSCHLER: I've been with ARCCA for about sixteen anda half years now.
MR. JACKSON: And you indicated that you're the Director of Biomechanics and Human Factors; is that right?
DR. RENTSCHLER: Iam. I'm a Vice-President and the Director of Biomechanics for the Midwest Division.
MR. JACKSON: Can you tell us what education, training and background qualifies you to perform your duties as the director for biomechanics and human factors?
DR. RENTSCHLER: Sure. Well, I got my B.S. in Mechanical Engineering with a minor in Biomedical Engineering from Carnegie Mellon University in 1995. I then went on to get my Master's in Bioengineering and Biomechanical Engineering from the University of Pittsburgh in 2002. And then I went to get my doctorate or my Ph.D. in Bioengineering and Biomechanics from the University of Pittsburgh in 2004.
MR. JACKSON: Doctor, do you specialize in research and analysis to evaluate specifically the study of the relationships between crash injuries and crash forces?
DR. RENTSCHLER: I do, yes.
MR. JACKSON: And, when I say "crash injuries," we are talking about to human beings?
DR. RENTSCHLER: That's right. Injuries to human beings whether it be, yeah, in a crash, motor vehicle accident, slip and fall, industrial, any type of setting where there is an injury to the human body. I evaluate basically that event and the mechanisms responsible for producing those types of injuries.
MR. JACKSON: Doctor, does it also include the study of and understanding of human kinematics?
DR. RENTSCHLER: It does, yes.
MR. JACKSON: As well as human tolerances?
DR. RENTSCHLER: Yes, sir.
MR. JACKSON: We all know what tolerances mean. What does kinematics mean?
DR. RENTSCHLER: So kinematics is really just the motion of the human body, and it's the study of the human body, how the body moves under different circumstances whether you're ina car that's struck from behind, what direction will your body move; slip and fall, how will your body rotate and move. It's really looking at the motion and the response of the body.
MR. JACKSON: Are you certified by any professional associations?
DR. RENTSCHLER: I have, again, a Ph.D. There is no professional licensure for biomechanical engineering. It pays to use the highest, basically, certification you can get. I'm also a member of SAE, Society of Automotive Engineers, as well as the American Society for Mechanical Engineers.
MR. JACKSON: Have you received additional training in education beyond your Ph.D. and the associations that we just talked about?
DR. RENTSCHLER: I have, yes, sir.
MR. JACKSON: Without going through all the detail, describe the kind of continuing education that you engage in.
DR. RENTSCHLER: I attend seminars and professional classes with respect to biomechanics as well as accident reconstruction, but looking at new technology and research with respect to injuries. For instance, motor vehicle accidents, if there's new safety measures such as airbags, seatbelt pretensioners, auto detection devices on vehicles. So really kind of staying up to date with the current research and literature that's out there.
MR. JACKSON: So your specialty, your sub-field, if you will, in terms of your engineering degree and education is literally in accident reconstruction and the effect that accidents and incidents can have on the human body; is that right?
DR. RENTSCHLER: It is. Yes. And biomechanics is looking at injury to the human body. So, you know, we use traditional engineering principles and apply it to the body because an injury is just an engineering problem. Instead of looking at a piece of steel that if you know the dimensions and size and you apply a force, it will bend and break. We look at the human body. How much force does it take and how does the force have to be applied to get a humerus fracture or an intervertebral disc injury or any type of injury. There are specific forces and mechanisms you need to produce those injuries, and that's what I do as a biomechanical engineer.
MR. JACKSON: Is there a difference between a biomechanical engineer and a doctor?
DR. RENTSCHLER: There is, yes.
MR. JACKSON: In terms of injuries?
DR. RENTSCHLER: Yes.
MR. JACKSON: Tell us about that.
DR. RENTSCHLER: So we really approach injuries from two different directions. If someone has an injury, you go to the doctor. You go to the hospital. The medical doctor will diagnose that injury, determine the best way to treat it and determine what the prognosis is. As a biomechanical engineer, I look at that injury from a different direction. Here's the injury. Well, how did that injury occur? What type of loading did you need to actually produce that injury? How much force was required? What happened to your body to actually cause that injury to occur? So we approach it, really, kind of from two different areas. And certainly the doctors diagnose the injuries and determine what they are. And then the biomechanical engineer will come in and will look at that injury and not only how is it produced but ultimately our hope is to mitigate and prevent injuries from occurring, whether in motor vehicle accidents, sports settings, industrial settings. Anywhere there is interaction with the body and the environment, we want to try and make it safer for individuals.
MR. JACKSON: So you're not diagnosing an injury as much as you are trying to figure out the mechanics and the forces behind the injury; is that right?
DR. RENTSCHLER: That's right. I'm not a medical doctor. I wouldn't diagnose an injury. But, given an injury, I understand the mechanics of how that injury is produced and what you need to actually cause that injury to happen.
MR. JACKSON: Are you also published in the field of biomechanics and/or engineering?
DR. RENTSCHLER: I am. Yes, sir.
MR. JACKSON: Can you describe that real quick?
DR. RENTSCHLER: When I did my graduate work at the University of Pittsburgh, I worked at a place called the Human Engineering Research Lab, and it was associated with the V.A. in Pittsburgh as well as the University of Pittsburgh. And so we looked at people with disabilities. Well, one of the big things that we did, one of the major points was people in wheelchairs. So if you have to propel a manual wheelchair, you put a lot of stress and force on the arm, the shoulder, the elbow, the hands, carpal tunnel. So we look at the injuries that are produced during those types of events. How can we reduce the force acting on the body for someone like that. So it's looking at, again, how the body responds, how we can set up a chair differently to actually reduce the amount of force one might have experienced doing that type of an activity.
MR. JACKSON: Have you qualified as an expert in the past in the area of biomechanical engineering and human factors?
DR. RENTSCHLER: I have, yes.
MR. JACKSON: In furtherance of -- let me ask it this way: Were you asked to engage in an analysis, for ARCCA to be engaged in an analysis of the incident that is currently before the Court?
DR. RENTSCHLER: I was. Yes, sir.
MR. JACKSON: Did you produce or did your team produce a report about your opinions and conclusions, including the testing and the methodology that went behind those opinions and conclusions?
DR. RENTSCHLER: We did, yes.
MR. JACKSON: You were not hired by the defense in this case, correct?
DR. RENTSCHLER: No, we were not.
MR. JACKSON: You were not hired by the Commonwealth in this case?
DR. RENTSCHLER: That's correct. We were not.
MR. JACKSON: When you started your analysis, you didn't know who we were. You did not know who the Commonwealth was?
DR. RENTSCHLER: That's correct.
MR. JACKSON: You'd never heard of the Karen Read case?
DR. RENTSCHLER: I had not. No, sir.
MR. JACKSON: You were contacted by my office after you provided your report, correct?
DR. RENTSCHLER: That is correct, yes.
MR. JACKSON: Were you ever contacted by the Commonwealth?
DR. RENTSCHLER: Not that I'm aware of, no, sir.
MR. JACKSON: And you and I have never discussed the substance of your testimony, correct?
DR. RENTSCHLER: That's correct. We have not.
MR. JACKSON: Would you consider that your analyses, your conclusions and opinions in this case are completely independent of any party in this room?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You've not been paid by the defense; is that right?
DR. RENTSCHLER: I have not. No, sir.
MR. JACKSON: And you do not answer to us in any way?
DR. RENTSCHLER: IT do not. That's correct.
MR. JACKSON: You indicated that you and your team were asked to undertake a review of the circumstances. What exactly did you review in coming to your opinions and conclusions and performing the tests that you've performed?
DR. RENTSCHLER: Well, we looked at -- there were police reports with respect to the incident, medical records for Mr. O'Keefe as well as the autopsy report, photographs of the evidence in this case involving the Lexus, the taillight, the incident scene where the evidence was found, as well as some other documentation.
MR. JACKSON: And you also worked with Dr. Wolfe, who just left the courtroom, correct?
DR. RENTSCHLER: I did, yes.
MR. JACKSON: Did you two have sort of a distinct role, although working as a team, a distinct role in making determinations and conclusions about the incident?
DR. RENTSCHLER: We did. There was a distinction. Certainly some of our work overlapped, but there was a distinction with what each of us actually did and performed with respect to this case.
MR. JACKSON: Following your review and your investigation and analysis, did you make any determination as to whether any of the injuries suffered by Mr. O'Keefe in this case were consistent with producing the damage that was seen on the SUV?
DR. RENTSCHLER: I did. Yes, sir.
MR. JACKSON: And what did you base your opinion on?
DR. RENTSCHLER: My opinion was based on certainly the medical records; the description of what the injuries were; the damage that we had to the Lexus, primarily the right rear taillight cover; as well as we performed testing to evaluate the strength of that taillight cover and look at the damage associated with different types of impacts and also to look at the overall evidence of where everything was found, where Mr. O'Keefe was found, what the injuries were, how they may or may not have occurred based on the damage we have to the vehicle.
MR. JACKSON: So did you look specifically to find whether or not you could determine the forces required for Mr. O'Keefe to suffer the injuries that you saw in the records, medical records, et cetera?
DR. RENTSCHLER: I did, yes. I determined in my analysis whether there was sufficient force with that damaged taillight and interaction with that taillight, to produce any of the injuries that were listed or diagnosed in the autopsy report and the medical records.
MR. JACKSON: Generally speaking, what injuries would you expect to see in a vehicle-pedestrian interaction at, say, 24 miles per hour?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that. Just generally, Doctor, if you would, please.
DR. RENTSCHLER: Yes, Your Honor. So 24 miles an hour, once you get up to that speed, you start to see fractures. You see significant ligament and tendon damage. I mean, usually about 15 miles an hour, 15-mile-an-hour impact, is where you start to see damage to, for instance, the leg and the knee. At that speed, you're going to produce -- if you impact the vehicle, you're going to produce upwards of 1,000 pounds of force on the body, depending on what part of your body impacts the vehicle. So certainly at 25 miles an hour, you start to see significant injuries.
MR. JACKSON: Is that true for any part of the body that is struck, whether it's center mass or an extremity, a thousand pounds of force because of the speed of the vehicle?
DR. RENTSCHLER: So force is equal -- Newton's second law. Force is equal to mass times acceleration. So the acceleration is going to be the same. It depends on the mass of whatever body part is being hit. So from the testing that we did at 15 miles an hour, we used a head form, which weighs about 11 pounds. And that produced almost 1,000 pounds of force, a little under that for the head. So anything that weighs 11 pounds is going to produce almost a thousand pounds of force. The heavier the object, if you get hit center mass, that's going to be even greater force because that is more mass than just 11 pounds. So the acceleration is the same for each body part. It just depends on the weight of the body part and how heavy it is to determine the force that's actually exerted on the body.
MR. JACKSON: Did you review in furtherance of your conclusions and opinions, did you review records that indicated injuries to both a head as well as an arm, a right extremity, right arm?
DR. RENTSCHLER: I did. Yes, sir.
MR. JACKSON: Taking those one at a time, is the injury to the head that you saw consistent with having been struck by a vehicle at 24 miles per hour?
DR. RENTSCHLER: It is not. No, sir.
MR. JACKSON: Can you explain why that is?
DR. RENTSCHLER: There's a couple reasons. First of all, and the main reason is that to get the injury, it was a fracture at the occipital region of the head, which is basically on the back bottom part of the head. So in order to have that part of the head contacted by the taillight, you would somehow have to have a configuration or be standing in a manner that the rest of your body doesn't get hit because there is no other significant injuries to the body. If there is enough force to cause a skull fracture, then there is going to be certainly enough force to cause injury to the rest of the body. So first of all, you have to determine how could you configure somebody could actually be standing to have only the head impacted, the back of the head? And, even if that was the case, if somebody positioned themselves in such a manner to have that occur, you are still going to see other injuries related to that, for instance, with the cervical spine.
Over a thousand pounds of force acting on the head, you're going to get Significant cervical injuries, fractures, disc injuries, tendon and ligament injuries. So the fact that we only have that head injury and only damage to the occipital portion of the skull is inconsistent in this case with being struck by that taillight. And then there is also the evidence that we Saw when we did the testing at 15 miles an hour where we dropped the head form. So that would be akin or like a vehicle backing up at 15 miles an hour, hitting the head. We had more damage to the taillight in that test than what we saw with the subject taillight cover. So if you're going 24 or 25 miles an hour or even faster, you are going to see even greater damage, greater fracturing of that rear taillight, and we just don't have that in this case. So both the physical evidence as well as looking at the biomechanical aspects of it are inconsistent with that head injury occurring due to impact with the rear of the Lexus.
MR. JACKSON: Shifting to the arm, are the same forces at play if instead of the head making contact with the taillight, it's an outstretched arm, for instance, at the elbow area of a human being, a person 73 inches tall, weighing 215 pounds?
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained. Ask it differently.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: Shifting to the arm, are the same forces at play if instead of making contact with a head you make contact with an arm, an outstretched arm?
DR. RENTSCHLER: They are. You know, I just explained the force is mass times acceleration. So if the arm weighs the same as the head, you're still going to get that same force, almost a thousand pounds.
MR. JACKSON: Does the arm weigh the same as the head?
DR. RENTSCHLER: It does, actually, almost identical because your arm, just one of the arms, including the hand, forearm and upper arm is about five percent of your total body weight. So for someone who weighs 216 pounds, that comes out to about 10.8 pounds. So your arm, basically your whole arm, is about the same, weighs the same as your head.
MR. JACKSON: So is your analysis the same, then, if the arm, close to an 11-pound arm, made contact with the taillight traveling at 15 miles an hour, would you expect even more damage to the taillight at a higher speed?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it. Watch the leading.
MR. JACKSON: Sure.
DR. RENTSCHLER: Yes, you would, if it's higher than 15 miles an hour and you have an arm actually striking that taillight, you are going to get even more Significant fracturing, more damage to that taillight at a higher speed than what we saw.
BY MR. JACKSON:
MR. JACKSON: So was the taillight consistent or inconsistent with striking an arm?
DR. RENTSCHLER: Our findings was -- it's inconsistent for a number of reasons, but it is inconsistent with striking the arm. Yes, sir.
MR. JACKSON: Okay. I want to shift back to the head injury that you saw. Was the head injury that you saw consistent with falling backward from a standing position onto a rigid surface?
DR. RENTSCHLER: That's certainly one of the possible scenarios. That would create the injury mechanism. You fall backwards, strike your head on concrete. That can produce thousands of pounds of force on the head. And so that's certainly a scenario where you could produce that damage if someone was standing and they fell backwards and they struck their head on the roadway or on the curb or a hard surface.
MR. JACKSON: I was going to ask. I think you may have just answered my question. Those kind of force multipliers require a hard or rigid surface or not?
DR. RENTSCHLER: They do. Yes, sir.
MR. JACKSON: So grass and dirt would not produce the same sort of force?
DR. RENTSCHLER: Grass and dirt? No. That would certainly not produce the same amount of force as hitting your head on the concrete.
MR. JACKSON: And if it was grass and dirt with a little bit of snow on the top of it, what effect does that --
DR. RENTSCHLER: That's going to dampen and lessen the force even more so.
MR. JACKSON: What injuries -- I want to shift back to the arm. I know we are going back and forth, but bear with me. Talking about the arm, if presuming a strike at say 24 miles an hour on just the arm, what kind of damage would you expect to see on the arm irrespective of the vehicle?
DR. RENTSCHLER: You're going to see significant damage on the arm, especially if it hits at that taillight with enough force to actually cause fracture of that taillight. That force is going to be concentrated at an initial point and you're going to see -- at that point, you're going to see probably the most damage to the arm and to the skin there. So remember, at 15 miles an hour, that's about almost 1,000 pounds. So at 24, 25, it's even greater. So that amount of force on the arm, certainly you're going to see extensive subcutaneous lacerations, bruising, contusions. You're going to see most likely fracture of the arm, as well. You're going to see Significant damage. Just imagine having your arm out and being struck by a car at 25 miles an hour. There's going to be significant damage, more so compared to simply the abrasions that were diagnosed and documented on the arm in this case.
MR. JACKSON: You did look at multiple photographs of the arm in this case, of John O'Keefe's arm in this case, correct?
DR. RENTSCHLER: I did. Yes, Sir.
MR. JACKSON: All right. Were the injuries that you saw on John O'Keefe's right arm consistent with having been struck by a vehicle in the manner that you just described?
MR. LALLY: Objection.
JUDGE CANNONE: That's sustained, Mr. Jackson.
BY MR. JACKSON:
MR. JACKSON: You reviewed injuries specific to John O'Keefe, correct?
DR. RENTSCHLER: I did. Yes.
MR. JACKSON: All right. Taking that as a hypothetical, would the injuries that you saw, generally speaking, hypothetically be consistent or inconsistent with having been struck by a car at 24 miles an hour?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May we approach?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Go ahead and state the nature of your objection.
MR. LALLY: The nature of the objection, I believe, is the precise area in which the Court indicated that after the voir dire it would not be permissible for this witness.
JUDGE CANNONE: So just by throwing a hypothetical in front of it doesn't alleviate you from the specific versus general.
MR. JACKSON: Your Honor, he has to be able to say, I looked at John O'Keefe's body. He's not looking at a mannequin's arm. He's looking at John O'Keefe's arm. And his opinion is that the injuries on that arm are inconsistent with the damage to the vehicle and the speeds that were required.
JUDGE CANNONE: And that's what I'm saying he cannot testify to. His expertise is in biomechanics, which qualify him only to describe the forces generated and speaking general about types of injuries those forces would generate. He cannot testify whether a traumatic incident caused John O'Keefe's injuries or whether the trauma did or did not cause the injuries of John O'Keefe. So general causation is fine but not specific regarding this. I'm guided by Massachusetts case law as well as -- there isn't a lot of case law but there is a federal district court case here in Massachusetts. So general causation, forces involved and the effects on a human body, not specifically regarding his injury.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I inguire, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: If you were to presume for purposes of my question that an arm were struck, an arm was struck, by a vehicle taillight traveling 24 miles an hour or thereabouts, would you expect to see pattern abrasions with no bruising?
MR. LALLY: Objection.
JUDGE CANNONE: Well, just what would you expect to see.
BY MR. JACKSON:
MR. JACKSON: What would you expect to see?
DR. RENTSCHLER: So again, I would expect to see significant trauma to the skin, to the bone, to the tendons. I wouldn't expect to see just abrasions, pattern abrasions. I mean, abrasions, by the very definition, means that it's trauma to the skin which is created through rubbing or grinding or friction. So it's basically something rubbing against the skin that basically wears away that top layer of skin. It's not blunt force trauma. If you have blunt force trauma, that produces a contusion or a bruising. It's nota laceration-type injury, a cutting injury that actually produces a cut or a Significant laceration. It's really just rubbing along the skin. So that would be inconsistent. If you have an arm that's actually struck at 25 miles an hour, you're going to have significantly greater damage, especially if there's a taillight that shatters. So you have the taillight coming in. It's hitting the arm and it's moving forward into the arm. So if that actually caused fracture of the taillight, then parts of that taillight are going to be pushed into the arm and likely imbedded into the arm as the vehicle continues forward and pushes the arm out of the way. We don't -- I didn't see any of that, basically just superficial abrasions which all appeared to have a similar amount of force. There is not a difference -- that's the other thing. If you hada taillight shatter and explode on an arm, you would have some areas where you would have very deep contusions or lacerations, other lighter areas. But, when you look at the abrasions that were noted in this case, they all appear to be the same force, generally the same direction and of the same severity, which would be inconsistent, in my opinion, with being struck at 25 miles an hour.
MR. JACKSON: Generally speaking, do you look for consistency and size of an object striking a body and the injury that the body suffers from being struck by the object?
DR. RENTSCHLER: Absolutely. I mean, size is a big part of it, certainly. Yes.
MR. JACKSON: So did you do any measurements of the size of the taillight, the width of the taillight, that was shattered?
DR. RENTSCHLER: Yes.
MR. JACKSON: And what was that width if you can recall?
DR. RENTSCHLER: I think the width we looked at was maybe six inches or so.
MR. JACKSON: In review of your -- in coming to your opinions and conclusions, did you look at the arm of John O'Keefe just sort of laid out, straight out?
DR. RENTSCHLER: I did, yes.
MR. JACKSON: Did you see where the injuries started and stopped or began and ended, however you want to put it, in terms of size?
DR. RENTSCHLER: Yes. It started from the upper arm and then extended down into the forearm, which was greater than 12 inches of length where you see those injuries and those abrasions occur.
MR. JACKSON: Did you come to any conclusions or opinions concerning the size differential between the taillight and the injuries that you see?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Generally speaking, would you expect, if there was an injuring event that the size of the injury would be consistent with the thing that produced the injury?
DR. RENTSCHLER: Yes. Generally speaking, you would certainly expect that. And, again, you would normally and usually be able to see an initial point of contact because that's where the most force is going to occur where it causes that taillight to break. So you would have an area of severe damage, and then it would extend out likely to the edges of where it would contact the rest of the taillight.
MR. JACKSON: From a biomechanics and/or a physics standpoint or an engineering standpoint, is it reasonable if someone is standing with their arm extended to be hit by a moving vehicle at, say, 25 miles an hour and the body, the center mass of the body to be projected?
MR. LALLY: Objection.
JUDGE CANNONE: Ask it differently.
BY MR. JACKSON:
MR. JACKSON: Is it consistent in your view with engineering principles that you know if an arm is hit, extended, not the body, just the arm is struck, for the body then to be projected?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that.
DR. RENTSCHLER: It's not, no. So if we have contact, the arm's down, we have contact to the arm. I mean, first of all, it's a ball and socket joint. So the arm can move independently of the rest of the body. So if enough force, even if you're contracting your arm and trying to hold it out as tight as possible, it's going to overcome that, that muscular contraction and basically just move the arm. But, secondly, it all depends on your center of mass. The center of mass is kind of the equilibrium point of your body and where your weight is distributed. And, for most normal people, the center of mass occurs at your umbilicus or your belly button. So wherever your belly button goes, that's where your body is going to move. They teach this to football players. If you're a defensive back and that running back comes around the corner and it's you against him, they tell them or they teach them to watch the waist and watch the belly button.
It doesn't matter what your head and your arms do or what their feet do. Wherever their belly button goes, that's where they're going to go. So that's what you want to tackle. So even if you had your arms straight out, again, we said it would move because of the joint. But let's assume you had a metal pole sticking out of your arm -- out of your body instead of your arm and that metal pole gets hit. What's going to happen to your body? It's just going to spin around, right, because it's producing a movement arm, which produces a torgue on the body. So your body is going to basically spin. In order to get the body, the complete body, over, for instance, 10, 20, 30 feet into the yard, you need a force acting at the center of mass. You need an external force pushing the body that way. And that's not going to happen if you just hit the arm. It's not enough force. It's not the right mechanism to actually cause the body to somehow move that far over.
BY MR. JACKSON:
MR. JACKSON: Assuming that a body was struck with enough force at center mass to project that body 20, 30 feet, what injuries would you expect to be produced on that body?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: If you did have a body that was projected a distance, what injuries -- from a car, what injuries would you expect to see on the body?
MR. LALLY: Objection.
JUDGE CANNONE: I'll see you at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: What is the objection?
MR. LALLY: Same objection with an addition that this calls for absolute speculation, particularly when there is no --
JUDGE CANNONE: I'm only concerned with there is evidence that there was some projection, right?
MR. LALLY: Uh-huh.
JUDGE CANNONE: Okay. I've allow the guestion without any distance because that's in dispute, right?
MR. JACKSON: It's not actually -- I mean, I'll follow the Court's instructions.
JUDGE CANNONE: I'm not sure it's even -- just do this, just without that.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Doctor, do you have my guestion in mind? Do you need me to repeat it?
DR. RENTSCHLER: Maybe repeat it.
MR. JACKSON: Easy for you to say. Assuming that a body was struck center mass with enough force from a vehicle traveling at whatever speed to project the body off the ground, would you expect to find injuries on that body?
DR. RENTSCHLER: You would. And you would actually see that there are specific injuries because let's say you're standing forward and you get hid on the right side with a vehicle. You're going to get injuries and damage to the right side of the vehicle as that vehicle impacts you. It depends on the profile of the vehicle how high the hood comes up, whether you're going to wrap up onto the hood or if it's a van or the back of an SUV, it will project or push your entire body to the left. So you're going to get initial contact and injuries to the right side of your body. And then if it propels you into the air, you're going to get airborne, and then you're going to contact the ground usually with the left side of your body. So then we're going to see a correlation of injuries to the left side of your body as it slams down onto the ground, as well. And, at those speeds, normally, you would also see more abrasions, greater abrasions or road rash along the entire part of the body as the body then would slide until it came to the point of rest.
MR. JACKSON: And you did not see that in this case?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May I have a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor. I have nothing further.
JUDGE CANNONE: Okay. Mr. Lally?
CROSS-EXAMINATION BY MR. LALLY:
MR. LALLY: Good afternoon, sir.
DR. RENTSCHLER: Good afternoon.
MR. LALLY: Now, you, in conjunction with the other doctors on your team that conducted the analysis and testing in this case, you wrote a report; is that right?
DR. RENTSCHLER: We did. Yes, sir.
MR. LALLY: And that report was issued on February 12th, 2024; is that correct?
DR. RENTSCHLER: I believe that's correct. Yes.
MR. LALLY: And, within the first paragraph of that report, the last two sentences state (as read), "This analysis is based on information currently available for ARCCA and is only to be limited -- excuse me -- only to be issued in its entirety. However, ARCCA reserves the right to supplement or revise this report if additional information becomes available"; is that correct?
DR. RENTSCHLER: I believe that's correct. Yes, sir.
MR. LALLY: Now, the information that you received and that you reviewed either individually or as a team, that included some state police reports; is that correct?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: Some Canton Police Department reports; correct?
DR. RENTSCHLER: Yes.
MR. LALLY: Some scene photos; is that correct?
DR. RENTSCHLER: That's correct, yes.
MR. LALLY: Medical examiner dispatch removal report; is that right?
DR. RENTSCHLER: I believe so. Yes, sir.
MR. LALLY: Some videos from the location of 34 Fairview Road; is that right?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: Some photographs of the defendant's vehicle, the 2021 Lexus LX 570; is that correct?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: Photographs of evidence that was recovered from the scene; is that correct?
DR. RENTSCHLER: That's correct. Yes.
MR. LALLY: C.D.R. report from the defendant's Lexus?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: And then essentially there were some other materials, whether they be literature or other things, that you and your team of other doctors reviewed over the course of formulating your opinions in this case, correct?
DR. RENTSCHLER: That's correct, yes.
MR. LALLY: Okay. Now, in regard to evidentiary materials that indicate -- within the report that were reviewed, you talk about the lens cap to the taillight assembly, the taillight assembly photographs of that nature. And then there is mention of a black straw that was found on scene, correct?
DR. RENTSCHLER: Yes.
MR. LALLY: There is no mention in the report of either Mr. O'Keefe's shoe or his hat, correct?
MR. JACKSON: Objection. May we approach?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: What is the nature of your objection.
MR. JACKSON: Relevance. If the defense was not allowed to ask any questions concerning the specific facts of this case, which I was clearly not allowed to do, then Mr. Lally -- what's good for the goose is good for the gander. Mr. Lally should not be able to bring in specific facts about this case. Otherwise, he opens the door.
JUDGE CANNONE: So you did get into some of it prior to it being objected to. Once it was objected to, I made my ruling. Are you going to just repeat the cross you did of the law witness? I'd ask you to focus on what's relevant to this particular witness.
MR. LALLY: I am going to, but --
JUDGE CANNONE: All right. SO --
MR. LALLY: -- I think it is relevant as far as the materials that he did not review.
MR. JACKSON: Then it's also relevant to what he did review, which means he reviewed the autopsy photos, the actual injuries on the arm, the actual Lexus, which I was disallowed from asking about. I stayed with -- the Court focused me and put up guardrails. And I had to stay with general propositions concerning a body in motion.
JUDGE CANNONE: Well, that's the law.
MR. JACKSON: I understand, but it's the law for them too.
JUDGE CANNONE: Mr. Lally, how does this go to the general opinion that he gave? I understand it goes to maybe credibility. What are you going to do with this? What do you intend to do with this? It's already in evidence. You can argue it. What do you need from this witness?
MR. LALLY: Specifically, what I would ask is whether or not had he known or been provided any of -- I mean, there were statements contained within his report that if he had DNA, that --
JUDGE CANNONE: That's fine. But no hat, no shoe. Just the statements that I allowed in because it goes to his credibility. He can't hear about her hitting him. I mean, very limited I'll let in when it does not open the door.
MR. JACKSON: You are going to allow in that -- the Commonwealth's leading question about were you aware that she said, I hit him, I hit him, I hit him?
JUDGE CANNONE: Yes.
MR. JACKSON: Okay. That is in dispute. That is clearly in dispute. I don't believe the evidence is before this jury that she said, I hit him, I hit him, I hit him.
JUDGE CANNONE: From three witnesses or two witnesses.
MR. JACKSON: I don't want to sit here and relitigate it, but you -- I spent five days cross- examining those witnesses, and they all broke down, all of them. One of them couldn't remember what he was wearing. The other one said --
JUDGE CANNONE: No. We are not going to discuss it. The jurors are free to choose --
MR. JACKSON: That's why it's not fair for him to basically give his closing argument.
JUDGE CANNONE: No. I wanted to get this to the jury. How long are you -- I mean finish with this witness. How long do you think you're going to be?
MR. LALLY: Not very long.
JUDGE CANNONE: All right. You can put in what he didn't review before writing an opinion on this case, but it's already in evidence. And he may open the door. I'm not suggesting that he has.
MR. LALLY: Your Honor, from my understanding of the Court's ruling, the guardrails that counsel is referencing were put up in reference to hypotheticals. I'm not asking him any hypotheticals.
JUDGE CANNONE: No. They were just not specific to John O'Keefe's injuries. So where are you going? What specifically are you going to ask him that's different than the last witness?
MR. LALLY: I don't know offhand. It's probably going to be very similar to what I asked the last --
JUDGE CANNONE: All right. I'm keeping it out. I'm not going to allow you to get into what you just did through the last witness. They both wrote a report. This is what they conducted, or you do risk opening the door.
MR. LALLY: Okay.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Do you need a couple of minutes, Mr. Lally?
MR. LALLY: No. That's fine, Your Honor. Thank you, though.
BY MR. LALLY:
MR. LALLY: Doctor, are you familiar with a term called compression abrasions?
DR. RENTSCHLER: Compression abrasions?
MR. LALLY: Yes.
DR. RENTSCHLER: Yes.
MR. LALLY: And am I correct when I say compression abrasions are essentially when direct pressure froma blunt object together with slight rubbing movements produce skin and epidermal crushing? Is that what your understanding of the term is?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: And are you familiar with pattern abrasions?
DR. RENTSCHLER: IT am, yes.
MR. LALLY: And pattern abrasions are injuries that show a distinct pattern that may reflect the shape of the impacting blunt object that you may see with reference to injuries that are left by that blunt object; is that correct?
DR. RENTSCHLER: That's correct. Yes.
MR. LALLY: Now, as far as in general terms from what you reviewed, at any point in time did you look at a state police reconstruction report?
DR. RENTSCHLER: I don't believe that I did. No, sir.
MR. LALLY: You weren't provided with that; is that correct?
DR. RENTSCHLER: That's correct. I don't believe so.
MR. LALLY: You weren't provided with any sort of forensic reports, DNA or anything like that; is that correct?
DR. RENTSCHLER: I don't believe so. No, sir.
MR. LALLY: Now, you never actually looked at the physical car; is that correct?
DR. RENTSCHLER: I did not. That's correct.
MR. LALLY: And are you aware that the physical car being the defendant's car is still in law enforcement custody and available for inspection if you wanted to? Are you aware of that?
DR. RENTSCHLER: I think I'm aware of that. Yes, sir.
MR. LALLY: But you never made that request; is that correct?
DR. RENTSCHLER: That was not necessary in this case to inspect the vehicle.
MR. LALLY: Whether it's necessary or not, you didn't make that request, correct?
DR. RENTSCHLER: I don't remember if we made that request or not. We obviously didn't look at the vehicle, but it wasn't necessary in this case.
MR. LALLY: Did you ever look at the actual taillight pieces or the taillight housing; is that correct?
DR. RENTSCHLER: Not the actual. We looked at photographs of the evidence, yes.
MR. LALLY: Now, the injuries that you observed or reviewed materials in regard to Mr. O'Keefe were primarily on the right side of his body; is that correct?
DR. RENTSCHLER: Well, sir, on the right arm, the posterior aspect of the right arm. Yes. And then the skull fracture was a little bit to the right, occipital fracture.
MR. LALLY: And there was also bruising on his right hand; is that correct?
DR. RENTSCHLER: There was bruising on the back of his right hand.
MR. LALLY: On the dorsal aspect?
DR. RENTSCHLER: Yes. Correct.
MR. LALLY: And there was also bruising on sort of the posterior of his right knee; is that correct?
DR. RENTSCHLER: There was a small bruise, I believe, yes.
MR. LALLY: Now, with respect to within your report, you talk about the numerous linear abrasions on the posterior of Mr. O'Keefe's right arm and forearm, correct?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: And, in relation to those injuries, there is a sentence in which you or whoever authored this part of the report, I'm assuming it's you, indicate that furthermore, any such injuries would be highly improbable if Mr. O'Keefe was wearing a jacket, correct?
DR. RENTSCHLER: Yes.
MR. LALLY: Are you aware that Mr. O'Keefe was not wearing a jacket other than a long-sleeve sort of hooded shirt?
DR. RENTSCHLER: I believe that came to light afterwards. Again, I mean, it doesn't affect my actual opinions in this case, but it was a sentence added in there. Yes, sir.
MR. LALLY: And so also within your report, same paragraph, you indicate (as read), "Blood and DNA transfer would also be highly probable under such circumstances, none of which were reportedly found on the tail lamp assembly or any of the fractured pieces," correct?
DR. RENTSCHLER: Correct.
MR. LALLY: Are you aware that DNA consistent with that of Mr. O'Keefe was actually found on the taillight housing from the defendant's vehicle?
DR. RENTSCHLER: I am aware after we wrote or issued the report that it became known to us that, I believe, DNA was tested and some DNA was found, I believe a small amount. I don't believe any blood evidence was located or found on any pieces, but there was indication of DNA on the taillight housing.
MR. LALLY: There was also DNA matching Mr. O'Keefe that was found on the exterior or the piece of drinking glass that was found right near his body?
DR. RENTSCHLER: I believe so, yes.
MR. LALLY: And there was also pieces, approximately a sixteenth of an inch by sixteenth of an inch of clear and red plastic that was subsequently found to be consistent with the defendant's taillight that was found imbedded within Mr. O'Keefe's shirt?
DR. RENTSCHLER: Within the shirt, I believe, yes, not his actual body.
MR. LALLY: And so these are all things that you found out after you issued your report in February of 2024, correct?
DR. RENTSCHLER: That's correct, sir. Yes.
MR. LALLY: When you were talking about the injuries to the back of the head of Mr. O'Keefe, consistent with coming into contact with a hard surface, correct?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: Would that hard surface include if the ground was frozen?
DR. RENTSCHLER: Well, you'd have to perform an analysis, actually, because you'd have to determine how hard that ground was. You'd have to look at the freeze-and-thaw cycle probably leading up to weeks of that. You can't just look at ground and say, well, it's below freezing. So that ground must be frozen. I mean, is it a possibility? It may be. But you have to go through an actual analysis and procedure to determine how hard that ground is and whether it would produce those injuries.
MR. LALLY: So it is something that's capable of being done by you; is that correct?
DR. RENTSCHLER: Performing that type of an analysis?
MR. LALLY: Yes.
DR. RENTSCHLER: I mean, you could go through and do it, sure. Yes.
MR. LALLY: Okay. But you didn't do it, correct?
DR. RENTSCHLER: No. I did not do it, no, because -- yeah. There is no need in this case. We don't know what happened in this case. There is no indication of -- certainly, it's not consistent with getting hit by the car and ending up where he did. Even if the ground is somehow hard enough to cause that type of an injury, again, there is no movement and no force to get his body over there and the damage with the car is inconsistent with him being struck by it. So whether the ground could cause it or not, the roadway could cause it. The curb could cause it. A bat could cause it. There's numerous different possibilities and we don't really have enough evidence in this case to determine what one specific event actually caused that injury.
MR. LALLY: You didn't have enough evidence based on what were provided; isn't that fair to say?
DR. RENTSCHLER: I didn't have enough evidence based on what I was provided. And, even looking at the additional evidence that I became aware of after the fact, there's still no evidence. I mean, you can't deny the science and the physics as to what would have happened if he was struck by the vehicle. So anything past that you have to somehow overcome that hurdle, which is very difficult to do.
MR. LALLY: And when was it that you looked at this additional material and who provided it to you?
DR. RENTSCHLER: We were informed after the report was issued that DNA was found. And that was really the primary issue, I believe, that some DNA was found on the housing which, again, there's numerous explanations or ways that DNA can get on the light housing.
MR. LALLY: Well, let me ask you this, sir: With regard to the materials that you were provided with, was there anything in there that stated that Mr. O'Keefe's skull fracture on the back of his head was caused by contact with the taillight?
DR. RENTSCHLER: No. I don't believe there was anything in those materials that stated that.
MR. LALLY: Was there anything in those materials that indicated or that anyone stated at any point in time that Mr. O'Keefe's arm was outstretched at the time that he was struck by the vehicle?
DR. RENTSCHLER: No, sir. There wasn't.
MR. LALLY: Was there anything in there indicating that his arm was tucked in at the time that he was struck by the vehicle?
DR. RENTSCHLER: You know, there is no indication in any of that evidence of what he may or may not have been doing, how he may or may not have been positioned. I mean, that's the whole issue. There is no evidence to indicate what may have allegedly occurred in this case.
MR. LALLY: Now, a typical pedestrian collision that you see through the course of your work involves a pedestrian being struck by the front of a vehicle; is that fair to say?
DR. RENTSCHLER: No. I see all types of different -- people getting run over backwards, cars spinning, hitting sideways. Frontal impacts certainly occur, yes. But we see pedestrians getting struck by all parts of the vehicle.
MR. LALLY: I'm sure you see all kinds. What I'm asking is predominantly when you see a pedestrian collision, the typical pedestrian collision would be a pedestrian crossing a road in front of a vehicle as it's approaching; isn't that correct?
DR. RENTSCHLER: That's certainly not uncommon. Yes, sir.
MR. LALLY: Okay. Now, as far as -- I believe you described a little bit on your direct testimony as far as there's differences in the type of injuries that you would expect or anticipate, depending on how the vehicle interacted with a pedestrian in a pedestrian collision, correct?
DR. RENTSCHLER: Yes, sir.
MR. LALLY: Okay. And, as far as -- are you familiar with what's called a sideswipe collision?
DR. RENTSCHLER: Yes, sir. I am.
MR. LALLY: And am I correct when I say that in a typical pedestrian collision with a pedestrian crossing in front of a vehicle, there are a number of different types of interactions as far aS a wrap ina forward projection versus a fender -- versus a number of different ways that a pedestrian can interact with the front of a vehicle, correct?
DR. RENTSCHLER: It depends on the position of the pedestrian and certainly the profile of that vehicle and the speed of the vehicle. Yes, sir. There's many different factors involved in it.
MR. LALLY: And so in atypical pedestrian collision when a pedestrian is struck by the front of the vehicle, that involves more of an assumption of the velocity of the striking motor vehicle by the pedestrian than you would expect to see in a sideswipe collision, correct?
DR. RENTSCHLER: Well, I mean, yes. Generally speaking, a Sideswipe means that the person or pedestrian and the vehicle don't obtain a similar or common velocity. So if you're standing in front of a car and it hits you, it is going to speed you up to that same speed and then disengage. Sideswipe means that there is not this mass- to-mass impact. By its very nature, sideswipe has minimal forces. We see it even between vehicles that just rub against each other. So if there is a Sideswipe impact with a pedestrian and a vehicle, there is going to be very little damage to the pedestrian and, similarly, there is going to be very little movement. There is really no force at all acting -- for instance, if a car came and it swiped your arm, swiped by your arm, but didn't have enough force or enough contact to cause any damage, well, it wouldn't cause any movement of the person either. Soa Sideswipe, by its very nature, involves minimal impact, minimal forces, minimal velocities.
MR. LALLY: And also contained within the report that you at least co-authored, there is an indication that Mr. O'Keefe's injuries, at least to his skull, the fracture to his skull, are consistent with him having been pushed or possibly been impacted by the subject Lexus and falling backward, striking his head; isn't that correct?
DR. RENTSCHLER: Yeah. So that's another possibility. If --
MR. LALLY: I'm sorry, sir. "Yes" or "no." Is that in your report?
JUDGE CANNONE: Let him answer. Let him answer.
DR. RENTSCHLER: So if we're saying that there's enough force if you fall backwards to strike your head and cause that skull fracture, well, he could have slipped and struck his head. The car could have backed up and not known that he was there and nudged him and caused him to fall. I mean, any event that would cause him to fall backwards, obviously, would result in his striking his head. So there's numerous, almost infinite possibility of different scenarios that could result in that type of an event.
MR. LALLY: Thank you.
JUDGE CANNONE: Mr. Jackson?
MR. JACKSON: Nothing further.
JUDGE CANNONE: Okay. Dr. Rentschler, you are all set, sir.
DR. RENTSCHLER: Thank you, Your Honor.
(Whereupon, the witness is excused.)
JUDGE CANNONE: Jurors, I'm going to see counsel for the last time at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Okay. So are you going to rest?
MR. JACKSON: I am going to rest, and I also, Since we are at sidebar, I would ask to renew the motion for required finding, Your Honor.
JUDGE CANNONE: Okay.
MR. JACKSON: But I would like to rest in front of the jury.
JUDGE CANNONE: Yes. I'll let you do that. Are you -- do you have anything for rebuttal?
MR. LALLY: No, Your Honor.
JUDGE CANNONE: All right. So I will tell them that they will get the case tomorrow for closing arguments and charge. We need to have a charge conference. Do you need to argue your motion or do you want to just rest on required finding?
MR. JACKSON: Based on what I stated previously.
JUDGE CANNONE: Okay. So you can rest here and I'll let you formally rest in front of the jury. Why don't you do that right now.
MR. JACKSON: With that, Your Honor, the defense rests.
JUDGE CANNONE: Okay. And there is now rebuttal. Are you now moving for the required finding of not guilty?
MR. JACKSON: I do, Your Honor.
JUDGE CANNONE: Okay. And you waive argument?
MR. JACKSON: I do, Your Honor.
JUDGE CANNONE: All right. That motion is denied. So I will tell the jurors they are going to get the case tomorrow. At 2:00 o'clock, I have something that will take five or 10 minutes. Why don't you all come back here at 2:30 for the charge conference.
MR. JACKSON: That's fine, Judge.
JUDGE CANNONE: Okay. So we'll see everybody at 2:30, but you can go ahead and do that.
MR. JACKSON: Thank you.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: Thank you, Your Honor. With that, the defense rests.
JUDGE CANNONE: Jurors, that is the evidence in this case. After all these weeks, that is the evidence that you will hear in this case. The lawyers and I still have work to do for tomorrow but tomorrow morning, we will have closing arguments of counsel. They will get an hour apiece to be able to argue this case to you. I'll instruct you on the law and then 12 of you will begin your deliberations sometime tomorrow. Okay? So with that, please do not discuss this case with anyone. Don't do any independent research or investigation into this case. If you happen to see, hear or read anything about this case, please disregard it. Let us know. We'll see you tomorrow.
(Whereupon, the jurors are escorted from the courtroom and excused for the day.)
(Whereupon, a luncheon recess was taken.)
AFTERNOON SESSION
(Court resumes.)
(Defendant present. Jury not present.)
JUDGE CANNONE: So before we start, there is something I do want to talk to counsel about at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So I would like to have a colloquy with Ms. Read about her not testifying.
MR. YANNETTI: That's fine.
JUDGE CANNONE: So we'll do it here at sidebar and I will seal it.
MR. YANNETTI: Perfect.
JUDGE CANNONE: And, also, you have requested a defendant-did-not-testify instruction.
MR. YANNETTI: Yes.
JUDGE CANNONE: I just want her to say she agrees with that, as well. Can you bring her up?
MR. YANNETTI: Yes.
MR. JACKSON: I'll get her.
(Whereupon, the defendant comes to the sidebar and is duly sworn by the clerk.)
JUDGE CANNONE: All right. So, Ms. Read, I need to have a colloguy with you about your decision not to testify. So would you tell me your full name? THE DEFENDANT: Karen Read.
JUDGE CANNONE: How old are you? THE DEFENDANT: Forty-four.
JUDGE CANNONE: How far have you gone in school? THE DEFENDANT: I have a master's.
JUDGE CANNONE: In the last 24 hours, have you had any drugs or alcohol that might affect your judgment in here today? THE DEFENDANT: No.
JUDGE CANNONE: Are you aware of any mental illness that you might have or that you suffered from in the past? THE DEFENDANT: No.
JUDGE CANNONE: So you understand that you have a right, an absolute right, to testify on your own behalf in this case, and I would open the case again to give you the opportunity to do so. Do you understand that? THE DEFENDANT: I understand.
JUDGE CANNONE: And it is important that you talk to your lawyers about whether or not you testify, but the decision as to whether you testify is not up to your lawyers. Do you understand that? THE DEFENDANT: I do.
JUDGE CANNONE: And the decision about whether you testify or not is yours and yours, alone. Do you understand that? THE DEFENDANT: I understand that.
JUDGE CANNONE: What is your decision? Are you going to testify on your own behalf THE DEFENDANT: My decision is not to testify on my own behalf. That is my decision.
JUDGE CANNONE: And not your lawyers' decision? THE DEFENDANT: It is not my lawyers' decision.
JUDGE CANNONE: Do you understand that you can't come back at a later time and say, I really wish I testified and my lawyers never told me it was my decision? Do you realize you can't do that? THE DEFENDANT: I understand I cannot come back at a later time and change my mind.
JUDGE CANNONE: All right. Like I say, are you doing this willingly, freely and voluntarily? THE DEFENDANT: Yes. I'm doing this willingly, freely and voluntarily.
JUDGE CANNONE: Has anybody forced you or threatened you or promised you anything in exchange for your decision? THE DEFENDANT: No.
JUDGE CANNONE: Are you doing this because it's your decision and your decision, alone? THE DEFENDANT: Yes.
JUDGE CANNONE: You understand that your lawyers have requested I give an instruction to the jury about you not testifying? THE DEFENDANT: Yes.
JUDGE CANNONE: Have they shown you that instruction that they requested? THE DEFENDANT: Yes.
JUDGE CANNONE: What is your decision? Do you want me to give that instruction to the jury or do you want me to not --
MS. LITTLE: Well, Your Honor, you did ask every juror that at jury selection.
JUDGE CANNONE: Hold on. Just so that the record is clear, both Ms. Little and Mr. Yannetti nodded when Ms. Read just looked at them, which is perfectly understandable. Mr. Jackson did not.
MR. JACKSON: I looked passively.
JUDGE CANNONE: But the decision is yours. So what is your decision about that instruction? THE DEFENDANT: Yes. It is my decision. It is not theirs. I will not come back at a later time. This is voluntary, voluntarily mine.
JUDGE CANNONE: Okay. Mr. Lally, hold on, or Ms. McLaughlin. Is there anything further?
MR. LALLY: No, Your Honor.
JUDGE CANNONE: All right. You're all set.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: All right. So the charge conference. The first question I have is regarding the -- I'll go through them in order, in the order that I have them in my very rough draft, but there is no request of the lesser-included offense of voluntary manslaughter to the second degree murder charge. Is that what the Commonwealth's intention is, not to request an instruction of voluntary manslaughter as a lesser included of the second degree murder?
MR. LALLY: I'm sorry? That's correct, Your Honor.
JUDGE CANNONE: Okay. And neither side has requested an instruction of a lesser included of OUI?
MR. LALLY: That's correct, as well.
JUDGE CANNONE: And the defense is not requesting that?
MR. YANNETTI: That's correct, Your Honor.
JUDGE CANNONE: All right. So the first instruction, the request from the defense is that I split the charge, and it's written that way. I'm not going to split the charge. So the way it will be is the defense will argue first and then the Commonwealth. Then we just go through all the instructions. So aside from that, the first instruction is the presumption of innocence. I have one that I typically give, but I will give the one that is requested by the defense. The next instruction is our reasonable doubt instruction, then function of the jury, the arguments of the lawyers and the judge's comments, function of the judge, functions of the lawyers. The verdict must be based on the evidence. I've incorporated some of what you've both included into that. I have language here that Similarly, as you review the exhibits, you may find that some information has been removed because it is not relevant. Please ignore that and don't try and guess what may have been removed or why.
I think that came from the defendant's request. Any information that you may have read, heard or seen about the case outside of the courtroom is not evidence. My instructions to you and any comments that I made, the lawyers' opening and closing statements and any comments they may have made are not evidence. Answers that I struck from the record and told you to disregard are not evidence. Only the testimony of the witnesses, that is, their answers to the questions, and the exhibits are evidence, with a more robust instruction but that's what I've added. And I do have a line about sympathy. Then I do the view. I should say right off the bat I am not going to give a Bowden instruction. You can argue it. You've been able to put in a tremendous amount of evidence. I've given you a lot of leeway with that, but there is something in this case that -- and I am fully within the law to do that. So I have here some language which I think is appropriate based on issues that were raised about the credibility of witnesses. Did the witness have any bias, reason or motive to give false or shaded testimony? If so, you may consider that bias or motive in your deliberations and ultimately as to whether or not it impacts the credibility of the evidence presented. So I cover the bias part of that. We'll go through it, and you can tell me -- who is going to argue this for the defense?
MR. YANNETTI: I am, Your Honor.
JUDGE CANNONE: All right. So we'll go through it. We will do each one. The limiting instructions: I give the defendant's bad acts instruction. I'll give a Similar instruction on the digital evidence that I gave during the trial, photographs and testimony with an emotional impact, humane practice. And, as of today, hypothetical. I had hoped that both of you could suggest something. I said that this morning. Do either side have anything for me on hypothetical?
MR. YANNETTI: I'm sorry. I don't, Your Honor. We are going to be getting back at a fairly early hour. I'm happy to work on it --
JUDGE CANNONE: That's fine. I can do it but, I mean, I wanted to give you both the opportunity -- yes. Go ahead and do one and send it to me.
MR. YANNETTI: I'm happy to do that.
MS. MCLAUGHLIN: I'll have one, too, by the end of the day.
JUDGE CANNONE: Okay. Opinion testimony, evaluation of exhibits, direct and indirect and circumstantial evidence. So I received today defendant's request, a late request, for the law allows both direct and indirect evidence and there is no distinction to be given. A conviction, however, may not be based upon the piling of inference upon inference or on conjecture and speculation. I don't think that's exactly the language from the case law here that you've cited.
MR. YANNETTI: I actually quoted it, Your Honor.
JUDGE CANNONE: From which one? From Honsch or --
MR. YANNETTI: From Honsch. Honsch quotes MacCormack, and MacCormack takes the law from Dostie.
JUDGE CANNONE: Yes.
MR. YANNETTI: There are multiple, multiple cases that --
JUDGE CANNONE: Right. The language that is typically given on this piling that I haven't really seen in years is you should not pile inference upon inference until the pile gets so high that it tips over logically or the chain gets so weak that it doesn't hold together anymore. When you run through your inferences, check the starting point and the ending point to make sure they are still reasonable. I mean, I can give that old language.
MR. YANNETTI: That's better.
JUDGE CANNONE: All right.
MR. YANNETTI: We would prefer that.
JUDGE CANNONE: All right. I haven't given that in years, but I'll give that part of it.
MR. YANNETTI: Thank you.
JUDGE CANNONE: And just to finish off that paragraph, when the evidence tends equally to give rise to either of two inconsistent propositions, the Commonwealth has established neither proposition. In order to convict the defendant, you must find that all the evidence and reasonable inferences that you have drawn, taken together, prove that she is guilty beyond a reasonable doubt.
MR. YANNETTI: That's agreeable. Thank you.
JUDGE CANNONE: So that rounds off that. All right. So now we'll talk about the indictments and the lesser includeds. So the second degree murder instruction that was provided by the Commonwealth and the one provided by the defense are just a little bit different. So if you take what is provided, there is one section that the defense incorporates that I think is missing from the instruction. And I'm going by the SJC instructions. So when you get to the second element of second degree murder, the defendant intended to kill John O'Keefe, the second element, first prong -- so the second element is that the defendant intended to kill John O'Keefe. As you can see, the second element has three sub-elements. I'm reading from the Commonwealth's proposed instructions which I shall call prongs. And the Commonwealth satisfies its burden of proof if it proves any one of the three prongs beyond a reasonable doubt. The first prong is that the defendant intended to kill. Now, here, I am going to insert because if you go back to the SJC instructions, I think it is appropriate to go back to the instruction on deliberate premeditation, which is the second element of that, is the language that is offered here by the defendant, that the defendant consciously and purposefully intended to cause the death of John O'Keefe. So who is arguing this for the Commonwealth? So, Ms. McLaughlin, does that make sense to you?
MS. MCLAUGHLIN: Yes, Your Honor.
JUDGE CANNONE: Okay. So I am going to put that in there. And the defense has the language of accident there, but, Mr. Yannetti, that really goes at the end. That goes -- as you'll see if you look at the instruction on extreme atrocity or cruelty where you have to go. So that will go at the end. That will go after the third prong definition. I will include the language that I think the Commonwealth put in its request. It goes there. If you have a reasonable doubt as to whether the victim's death was accidental because the death was caused my a negligent, careless or mistaken act of the defendant or resulted from a cause separate from the defendant's conduct, you may not find that the Commonwealth has proved the defendant intended to kill, intended to cause grievous bodily harm or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood. Then you have, in deciding whether the defendant intended to kill, intended to cause grievous bodily harm or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by her consumption of alcohol or drugs. That goes there.
MR. YANNETTI: That's fine, Your Honor.
JUDGE CANNONE: Okay. Does that make sense to you, too, McLaughlin?
MS. MCLAUGHLIN: Yes, Your Honor.
JUDGE CANNONE: All right. Do you want both the mental impairment or consumption of alcohol and drugs? Do you want to just leave the whole generic sentence?
MR. YANNETTI: I think we can, yes.
JUDGE CANNONE: All right. Is there objection from the Commonwealth on that?
MS. MCLAUGHLIN: I don't believe there has been any evidence of mental impairment, but the Commonwealth has no strong objection.
JUDGE CANNONE: All right. There is no evidence of drugs either. So do you want it to just be the alcohol?
MS. MCLAUGHLIN: I'd suggest that would be most in line with the evidence just to have intoxication under alcohol.
JUDGE CANNONE: All right. It makes sense to me, Mr. Yannetti, if we focus just on the alcohol. But, if you want mental impairment --
MR. YANNETTI: We would prefer it, Judge, just to keep it in disjunctive --
JUDGE CANNONE: All right. So I will think about this one tonight. Okay? Then manslaughter while operating motor vehicle under the influence of liquor. So Mr. Yannetti, you have included in the language, what does it mean to be under the influence of alcohol. That paragraph that starts afer the third element.
MR. YANNETTI: I'm sorry, Your Honor. Is there a page number? I'm trying to --
JUDGE CANNONE: Nine.
MR. YANNETTI: I have it. Yes.
JUDGE CANNONE: All right. So you have included, it means that a person has consumed enough alcohol to reduce their mental clarity, self-control and reflexes and thereby left them with a reduced ability to drive safely. Where is that language from?
MR. YANNETTI: This particular portion, Your Honor, I thought was from the model instruction. If I'm wrong, then we are fine with the model instructions on this issue.
JUDGE CANNONE: What does the Commonwealth say?
MS. MCLAUGHLIN: The Commonwealth's language comes from the model jury instructions, I believe, from the most recent 2024 instruction on intoxication.
JUDGE CANNONE: And that's not in the Commonwealth's request, correct, that sentence that I just read?
MS. MCLAUGHLIN: On page 5, we have the third paragraph that is either a similar sentence or a different sentence --
JUDGE CANNONE: Yes. It's a similar sentence. A person is under the influence of alcohol if they have consumed enough alcohol to reduce their ability to operate a motor vehicle safely by decreasing their judgment, alertness and ability to respond promptly and effectively to unexpected occurrences. So you don't need both, Mr. Yannetti.
MR. YANNETTI: I agree, Your Honor.
JUDGE CANNONE: So you have both. So I'm just not going to do that.
MR. YANNETTI: We are perfectly fine with that.
JUDGE CANNONE: Okay. So under the second theory, so the Commonwealth is proposing the theory of the .08 or greater. The evidence supports that. I'm going to do that. So in the language from the Commonwealth, the fourth element, then we talk about wanton and reckless. So for the fourth element, Mr. Yannetti, this is where your language -- you have language for five that actually belongs with four, I think. I'm just going to find it. Foreseeability. I think that belongs under four, and that's where I'll have it. Okay?
MR. YANNETTI: Okay.
JUDGE CANNONE: It belongs with four instead of five. Do you agree with that?
MR. YANNETTI: I see the language now. Yes. That's fine, Your Honor.
JUDGE CANNONE: And do you agree with that Ms. McLaughlin, it belongs under five?
MS. MCLAUGHLIN: It does.
JUDGE CANNONE: All right. So I'll keep it. I mean, it belongs under four. I'll keep it at four and not have it at five where you put it Mr. Yannetti, okay?
MR. YANNETTI: Understood.
JUDGE CANNONE: I am going to give the lesser included offense of involuntary manslaughter. So there is additional language that I found helpful in other cases when I discuss the language and the cause of death. Remember, Ms. Read caused John O'Keefe's death if her actions directly and substantially set in motion the entire chain of events that produced the death. And then the next sentence is, the defendant's act is the cause of death where, in a natural and continuous sequence, results in death and without which death would not have occurred. Okay. So those two sentences I find go better together, Mr. Yannetti. Is there any objection to that?
MR. YANNETTI: No. I understand the Court's point.
JUDGE CANNONE: Okay. Any objection from the Commonwealth?
MS. MCLAUGHLIN: No, Your Honor.
JUDGE CANNONE: So, Mr. Yannetti, you have in here a police officer's opinion about a driver's sobriety like that testified to in this case. A police officer didn't testify as to the defendant's sobriety.
MR. YANNETTI: I think you're right.
JUDGE CANNONE: Okay. So that paragraph that begins with that, we'll just cross that out.
MR. YANNETTI: I think that's fine.
JUDGE CANNONE: In this same instruction, I have included a new paragraph, in deciding whether the defendant knew or should have Known her conduct created a high degree of likelihood that substantial harm would result to another, some portion of the sentence that I'm going to think about tonight, I have, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by her consumption of alcohol.
MR. YANNETTI: Understood.
JUDGE CANNONE: Any objection from the Commonwealth on that?
MS. MCLAUGHLIN: No, Your Honor. That was reguested by the Commonwealth if you could consider it.
JUDGE CANNONE: Yes. So that will be in that last paragraph with that offense, Mr. Yannetti. Then the lesser-included offense, motor vehicle homicide; felony OUI, liquor; and negligence. I am going to give that. So I don't have anything because the defense didn't --
MR. YANNETTI: We didn't request any lesser included offenses.
JUDGE CANNONE: So I didn't see anything that was inappropriate about the Commonwealth's instruction, Mr. Yannetti. I have added, I think, one line that a person acts negligently when she fails to use due care; that is, when they act in away that a reasonable person would not act. This can happen either by doing something that a reasonable person would not do under the circumstances or by failing to do something that a reasonable person would do. It's obviously the law.
MR. YANNETTI: Right. Yes. That's the law of negligence, and I do understand the law of lesser includeds.
JUDGE CANNONE: Okay. Thank you. So leaving the scene of an accident, resulting in death. So what the Commonwealth has provided is basically just the six elements with nothing further. Pretty much one and two have already been defined for the jury many times at this point. Three, the defendant knowingly collided with John O'Keefe. I think that's self-evident. Ms. McLaughlin, why did you just give me the six elements?
MS. MCLAUGHLIN: Your Honor, as you suggested, the first two have been defined extensively for the jury, and I believe the other three, sorry, four prongs are self-evident. So they don't need further instruction. I think it would be sort of redundant or unnecessary to explain to a juror, you know, failure to provide documentation of, you know, registration and things like that, does not warrant additional instruction.
JUDGE CANNONE: Do you think they need to listen to me any more than necessary, Mr. Yannetti?
MR. YANNETTI: Absolutely not. We are in complete agreement, maybe for the first time in this trial.
JUDGE CANNONE: All right. So we will just leave it. You've offered six, two pages or three pages of definitions. So we won't do that.
MR. YANNETTI: Withdrawn.
JUDGE CANNONE: Okay. Ms. McLaughlin, the use of a dangerous weapon, a motor vehicle, I agree that's an appropriate statement of the law. Tell me about your request to have that.
MS. MCLAUGHLIN: Your Honor, the request goes to the defendant's state of mind. Also, it would go to any intent or any understanding of the jury of what would be reckless conduct or negligent conduct or intentional conduct if they understand that the use of a motor vehicle to commit a crime could be a per se dangerous weapon and then using that to strike an individual, that could be used in their deliberations in assessing the defendant's intent or state of mind at the time of the collision.
JUDGE CANNONE: It seems to make sense, Mr. Yannetti.
MR. YANNETTI: My position is it's unnecessary, but I am going to waive argument on that.
JUDGE CANNONE: Okay. I think it makes sense. I'll just leave it sort of as a catchall at the end where it appears on the Commonwealth's request. All right. So that's basically it. The first and longest part maybe is the general instructions in the beginning. Anything specific from the Commonwealth that I did not include?
MS. MCLAUGHLIN: Do you intend to give a consciousness of guilt instruction?
JUDGE CANNONE: Oh, I'll hear you on that. I don't, but you can try and convince me if you want.
MS. MCLAUGHLIN: Your Honor, the Commonwealth would put forth that there is sufficient evidence that the defendant has engaged in actions that go to her consciousness of guilt. There is an inference that the defendant deleted portions of the Ring video, a narrow area of Ring videos that are missing. They begin with Mike Camerano picking up his daughter at 11:00 a.m. They resume at 5:07 where the defendant backs her vehicle into John O'Keefe's. Then there is a period missing where the defendant shows the broken taillight to Jennifer McCabe and Kerry Roberts, and then the video resumes again when the victim's niece gets picked up. But not only the missing Ring videos but also the defendant's behavior. What began as testified to from the Dighton police officer, the defendant's father called the Dighton Police Department and requested a ride to the Samaritan Hospital due to the weather conditions. He then drove himself to Brockton to pick up the defendant and perhaps bring her home.
What they do in the middle of a blizzard is now -- Dighton to Brockton, you know, is half the distance. Then they travel further, all the way back to Canton to retrieve the murder weapon, along with the defendant's brother. They all meet at the victim's residence to remove the murder vehicle and bring it all the way down to Dighton, Massachusetts. That would go to concealing evidence and intention. There is also evidence of the defendant's statements going to her consciousness of guilt within hours after John's death. The victim's sister-in-law calls the defendant, reaches out, wants to make sure she's okay. The defendant says to her, I only have to remember the bad times. You'll likely never hear from me again. Erin O'Keefe testified she tells the defendant, of course we are. We're friends. She's never heard from the defendant since. So I think that goes to the defendant's state of mind in the hours after the death. But, in addition to the Ring video, I think there is strong evidence of consciousness of guilt to move the murder vehicle within hours of John's death.
JUDGE CANNONE: Mr. Yannetti?
MR. YANNETTI: Well, first of all, with regard to the Ring video, Trooper Guarino, who was certainly no friend of the defense in this case, testified that there was zero evidence that Karen Read had access or had accessed anything on that computer. And the Commonwealth utterly failed to prove that she had any access to delete anything. So I would say that that is a red herring. This is the one case, I think, a very rare case, where there is much more consciousness of guilt evidence with regard to the Commonwealth's own witnesses than there is with regard to the defendant in a criminal case. And, you know, with regard to the other arguments, I'm having trouble following what --
JUDGE CANNONE: So moving the car extra distance during the blizzard. That part of the argument that the Commonwealth made.
MR. YANNETTI: I mean, the evidence was that my client maintained a residence in Mansfield. She didn't live at One Meadows. She spent time there. So, you know, to say that moving her car to her own home where the police later found it because she was there and picked up the phone and said that the police were coming and she stayed there and they were able to seize the car, that does not rise to the level of consciousness of guilt, Your Honor.
MS. MCLAUGHLIN: Your Honor, the defendant actually moved her vehicle to her parents' residence. So that -- not her residence in Mansfield, which would further support an inference that she was concealing evidence.
MR. YANNETTI: Right. Well, even if it's her parents' house, Your Honor, again, if she is no longer dating John O'Keefe because he's passed away, then it makes sense for her to have her vehicle at her parents' house or her own house. And, again, it does not rise to the level of consciousness of guilt.
MS. MCLAUGHLIN: Nor does she stay at the home of her boyfriend to grieve with the family who just lost John. She quickly comes back to the house, brings her family members, goes upstairs for about 20 minutes by herself with her father and guickly leaves the residence.
MR. YANNETTI: Again, there is no evidence that she did anything upstairs or that she had access or the ability to change anything.
JUDGE CANNONE: It's a little bit more robust argument than I expected from the Commonwealth. So I'm going to think about this. I'll let you know before closing argument tomorrow. And, if I don't instruct on it, the Commonwealth is still able to testify to it. Witness pretrial preparation. That came out on both sides. I'm going to give the second alternative. Mr. Yannetti, I'll hear you on your instructions.
MR. YANNETTI: So I believe that we've covered the vast majority of it, Your Honor.
JUDGE CANNONE: I'm giving you an opportunity to argue the Bowden now just so you can make a record.
MR. YANNETTI: Oh, sure. All right. Let me just pull up that. If I may just have a moment, Judge? I put that document away once the Court said you weren't going to give it. Okay. Yeah. I mean, with regard to the Bowden evidence or instruction, Your Honor, you know, having done this for as long as I have, it is reguested a lot and not given, you know, a large percentage of the time. And I do recognize that the Court has discretion to give it or not give it and that we also can argue this in closing argument, anyway.
JUDGE CANNONE: Right.
MR. YANNETTI: But, you know, I think that if there is any case where a Bowden instruction should be given, it's this one. You know, we start with the conflict of interest that existed at the start of this case and the fact that Michael Proctor was allowed to not only continue with the case but to be the lead investigator or case officer during the whole pendency of the case despite his obvious conflict of interest with the Albert family. We then move to the fact that, you know, he never as a lead investigator went into the house at 34 Fairview. He never looked around. He never checked for any signs of struggle. He never checked out the basement. He never looked for a weapon that could have been used to do the damage that was done to the back of John O'Keefe's head. He was never once asked about Chloe, the German Shepherd, despite the obvious injuries to John O'Keefe's arm. With regard to the witnesses, Your Honor, witnesses were interviewed in a very relaxed manner at their own homes. There was testimony that they were interviewed together, that they were not separated out on numerous occasions, Brian Albert, Nicole Albert, Jen McCabe, Matt McCabe, all interviewed en masse. Later, everybody in that group except for Nicole Albert was also interviewed at the same time. Chris and Julie Albert were interviewed together. And then we have all this, you know, evidence, the way it was handled or, I should say, mishandled, you know, starting with the leaf blowers and the Solo cups and things being pictured on the floor of garages, not being properly handled and the fact that there are no chain of custody logs for the evidence before March of 2022. So I just highlight those, Your Honor, as examples. I believe there's more, but that's the record that I would make.
JUDGE CANNONE: Okay. So are you satisfied you've made a record on this?
MR. YANNETTI: I am. I think so.
JUDGE CANNONE: But I did include some specific bias language that I read to you early on that sort of ties into this.
MR. YANNETTI: Understood, Your Honor.
JUDGE CANNONE: Okay. So nothing else?
MR. YANNETTI: That's it.
MS. MCLAUGHLIN: I have one question. The defendant requested a missing witness instruction.
JUDGE CANNONE: Yes. You're not --
MR. YANNETTI: Oh, I've withdrawn that. That was crafted as the trial was ongoing. I didn't know if we were going to have that or not.
JUDGE CANNONE: Thank you for bringing that up, Ms. McLaughlin.
MR. YANNETTI: Right. I agree that it's not appropriate in this case.
JUDGE CANNONE: All right. So I will see you tomorrow morning.
MR. YANNETTI: My only question, Your Honor, is that -- I haven't tried before this Court before, I don't think. Do you typically send a copy of your instructions to counsel prior to --
JUDGE CANNONE: If I haven't finished, I expect I'll be up late tonight and will have it finished in time for you tomorrow.
MR. YANNETTI: Understood. Thank you.
JUDGE CANNONE: I do give two, maybe three copies to the jury afterwards.
COURT CLERK: There was some question as to the use of chalks --
JUDGE CANNONE: Can we focus on this? So does the defense intend to use chalks?
MR. YANNETTI: I'm going to defer to my co- counsel on that.
MR. JACKSON: Two.
JUDGE CANNONE: What do you intend to use?
MR. JACKSON: Photographs of the vehicle and photographs of the taillight So two side-by-side photographs of the taillight that are in evidence and photographs of the vehicle or still shots of the vehicle that are in evidence.
JUDGE CANNONE: Okay.
MR. JACKSON: And that's the extent of it.
JUDGE CANNONE: Okay. Does the Commonwealth have any objection?
MS. MCLAUGHLIN: No, but the Commonwealth also intends to use chalks.
JUDGE CANNONE: What do you intend to use?
MS. MCLAUGHLIN: Also side-by-side photographs in video but also a timeline that summarizes text messages and voicemails and Significant events from January 28th through January 29th.
JUDGE CANNONE: Okay.
MR. JACKSON: Your Honor, we'd request to see that in advance.
JUDGE CANNONE: You should both exchange them. Okay?
MR. JACKSON: Right.
Court Order: Jurors or Juror Issues
COURT CLERK: Okay.
MR. JACKSON: Your Honor, when is that done? At what point?
JUDGE CANNONE: At the end of the instruction, before I give the instruction on -- the SJC instruction.
MR. JACKSON: Got it.
MR. YANNETTI: Can I ask a question?
JUDGE CANNONE: Yes.
MR. YANNETTI: Do you pick a foreperson, Your Honor?
JUDGE CANNONE: Yes.
MR. YANNETTI: You do. Sometimes it's done by lottery. I just wanted to inguire.
JUDGE CANNONE: In Massachusetts, it's supposed to be chosen by the judge.
MR. YANNETTI: I've seen it both ways, but thank you.
JUDGE CANNONE: I know. All right. Anything else?
MR. JACKSON: I need to learn more about Massachusetts law.
JUDGE CANNONE: All right. Thank you. We'll see you tomorrow.
(Whereupon, the Court adjourned.)