Commonwealth v. Read — Trial Archive5.Charge Conference
155 linesJUDGE 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.)