Commonwealth v. Read — Trial ArchiveDeliberation - Day 1
75 linesCOURT CLERK: All persons have ended this act before the Honorable Beverly Cannone, Justice of the Norfolk Superior Court and for the county of Norfolk. [unintelligible] You shall be heard. I say to the Commonwealth of Massachusetts. The court is now open. You may be seated.
JUDGE CANNONE: 22-1117. The Commonwealth versus Karen Read. All right. Good morning, counsel. Good morning, Ms. Read. Good morning, jurors. I have to ask you all, including the alternates, those three questions. Were you all able to follow the instructions and refrain from discussing this case with anyone since we left the courtroom yesterday? Everyone said yes or nodded affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case? Everyone said yes or nodded affirmatively. Did anyone happen to see, hear, or read anything about this case since we left here yesterday? Everyone said no or shook their heads. All right. With that, we'll send you back out to deliberate. Thank you. All right.
JUDGE CANNONE: So counsel, I don't want the jury to have to wait for us for anything today. So you're to stay in the building until 10. I need you back here for the afternoon. No later than 3:30. And you'll be free to leave during the day. As long as you can definitely be in here in your seats ready to go on five minutes notice. Okay. So we'll see you then. All rise for the court, please. : You are muted.
COURT CLERK: Judge, we're back on the record of 22-1117. I believe we have a question from the jury.
JUDGE CANNONE: Yes. It's simply good morning. The jury is kindly requesting to conclude deliberations in time to board the bus at four PM. A juror has a long-existing scheduling conflict. So I'm just going to simply say yes and send it back. Yes. That's fine. Okay. All right. Can we mark this, please? Thank you. Do you want the envelope? All right. Thank you. We will send it back in with you. Officer Delano.
COURT OFFICER: Thank you. All right. All set. All rise please.
COURT CLERK: 22-1117.
JUDGE CANNONE: All right. So, why are we out here?
MR. JACKSON: I just saw the verdict forms and as we discussed yesterday, the amendments the court indicated it would make them.
JUDGE CANNONE: Oh, no, no. Okay. I did not say I'd make it. I said I'd think about it. I said I was tired and I needed to think about it.
MR. JACKSON: You said before you retired and you needed to think about it was you agreed that there needs to be not guilty options for subordinate charges.
JUDGE CANNONE: No. Under count two. I said that it made sense to me but no, I did not change it upon looking at it because the verdict slip, this verdict slip as submitted to the jury is exactly how it always is in Massachusetts.
MR. JACKSON: I ask you a question. I don't really care how it always is in Massachusetts. I care about whether or not it's appropriate.
JUDGE CANNONE: It's appropriate. It's appropriate.
MR. JACKSON: You make my argument, if you don't mind, Judge, why it's not appropriate. For superior charge, they have to decide that she is not guilty of the superior charge and that is the starting point of whether or not she is guilty or not guilty of any subordinate charge, often called the lesser included. Once they decide that she's not guilty of the superior charge, now there's two additional charges that they've been instructed. They must decide whether she's guilty or not guilty of. How do they decide that she's not guilty of the first subordinate charge, involuntary manslaughter?
JUDGE CANNONE: Okay. Anything else you want to say, Mr. Jackson?
MR. JACKSON: I'd like an answer from the court. How do they decide that she's not guilty of involuntary manslaughter on that verdict slip?
JUDGE CANNONE: That's their decision to make.
MR. JACKSON: And how do they make it if they don't have an option to check a box that says not guilty?
JUDGE CANNONE: They don't check the box that says guilty, do they? And then when they go to the next block, they don't check the block that says guilty. And on the top, you're left with not guilty. Okay?
MR. JACKSON: So it's the absence of the check mark that the court determines is the not guilty finding by the jury?
JUDGE CANNONE: Yes, that's what the verdict slip reads. It reads not guilty. If they don't check block two, three, or four, the verdict slip reads not guilty. Okay? That's how it is, Mr. Jackson.
MR. JACKSON: Apparently, that's how it's going to be because of the court ruling. That is not how it should be, and it's over our strong objection. They need to see that there is a not guilty option for the subordinate charges. If they come back guilty on, for instance, involuntary manslaughter, that's immediately appealable. They didn't have an option on the verdict form to find her not guilty. It's almost like the court is directing a verdict to the subordinate charges.
JUDGE CANNONE: Okay. I disagree with you. Mr. Yannetti, you've seen verdict slips exactly like this. Okay?
MR. YANNETTI: I actually haven't.
JUDGE CANNONE: Have you had no lesser included?
MR. YANNETTI: No, we've always had lesser included, but I have not seen a verdict slip where not guilty is not an option.
JUDGE CANNONE: Okay. I disagree with you. All right. Excuse me. This is funny, Ms. Read. All right. We're done. All rise for the court, please. All rise for the court.
COURT CLERK: Judge, we have a question from the jury. It's been marked QQQ for identification.
JUDGE CANNONE: So, question. Can we request the CERT report detailing the search performed? So, they can request it, but they can't get it. So, I'm just going to say you have all the evidence in this case. We'll figure that out. I'll get some language from you. But Mr. Jackson, after our hearing this morning, I considered what you said. I went back and I read the jury instructions I gave yesterday. So, I do appreciate the concern about the confusion this might cause the jury. I think it's easily clarified with the supplemental instruction. I don't think it's the verdict slip. I think it's how they're to follow the verdict slip. So, what I've written up, this is a very rough draft. I'll read it to you. I'll take a break and let you consider it if you want. But and this works.
JUDGE CANNONE: So, I received this, I don't know, 15 minutes ago when I wrote the letter, the question from the jury. So, it seems a good time. So, I was working on this. It seems a good time to bring them in for an answer to that question. And I would say as long as I have you here, I want to clarify my instructions regarding your verdict as to count two of the indictment. As I instructed you yesterday, there are two lesser offenses of that crime which are involuntary manslaughter and motor vehicle homicide, felony, OUI, liquor, and negligence. Therefore, count two encompasses three separate charges, the most serious of which is manslaughter while operating a motor vehicle under the influence of liquor.
JUDGE CANNONE: In considering count two, you should first focus on the crime of manslaughter while operating a motor vehicle under the influence of liquor. And if the Commonwealth has failed to prove that crime beyond a reasonable doubt, then you are to consider the remaining lesser included offenses in descending order. The lead charge is manslaughter while operating a motor vehicle under the influence of liquor. If you find that the Commonwealth has proved all five elements or proven all five elements of this charge beyond a reasonable doubt, then your verdict shall be guilty of manslaughter while operating a motor vehicle under the influence of liquor.
JUDGE CANNONE: If, however, you find that the Commonwealth has not proven all five elements of manslaughter while operating a motor vehicle under the influence of liquor, then you are to consider whether the Commonwealth has proven, beyond a reasonable doubt, the three elements of the lesser included offense of involuntary manslaughter. If the Commonwealth has proven the three elements of involuntary manslaughter, then your verdict shall be guilty of the lesser included offense of involuntary manslaughter.
JUDGE CANNONE: If however you find the Commonwealth has failed to prove beyond a reasonable doubt the crime of manslaughter while operating a motor vehicle under the influence of liquor and the lesser included offense of involuntary manslaughter, then you are to consider whether the Commonwealth has proven beyond a reasonable doubt the five elements of motor vehicle homicide, felony OUI, liquor and negligence. If the Commonwealth has proven beyond a reasonable doubt the five elements of motor vehicle homicide, then your verdict shall be guilty of the lesser included offense of motor vehicle homicide, OUI, liquor and negligence.
JUDGE CANNONE: If however the Commonwealth has failed to prove beyond a reasonable doubt all elements of manslaughter while operating a motor vehicle under the influence of liquor and has failed to prove all of the elements of the lesser included offenses of involuntary manslaughter or motor vehicle homicide, felony OUI, liquor and negligence, then your verdict must be not guilty to count two.
MR. JACKSON: May I have just one moment?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor. May I be heard?
JUDGE CANNONE: Yes.
MR. JACKSON: I deeply appreciate the court's additional clarifying language. I would simply ask for one very simple amendment and that is at the top of the verdict slip that says the two words not guilty. We would ask that the verdict slip read not guilty of the offense charged or of the offense charged or any lesser included offense. That's it. And I would say that and the court's clarifying instruction would satisfy the defense.
JUDGE CANNONE: All right. Thank you. I know it will. That's all we ask. All right.
MR. JACKSON: I can repeat that if the court wishes.
JUDGE CANNONE: So there are some minor changes we have to make to the verdict slip anyway. Just, you know, it has to be consistent. So the manslaughter while operating a motor vehicle under the influence, the tab needs to actually [unintelligible]. So there needs to be some physical changes on the verdict slip anyway. It needs to be indented. There needs to be a colon after guilty of offense charged. It's not complete. It doesn't have under the influence of liquor. It just says under the influence. So there are some minor changes that need to be made to the verdict slip. Does the Commonwealth oppose the suggestion made by Mr. Jackson, which seems like a reasonable one? No. All right. So it will be not guilty. So tell me again how you want it.
MR. JACKSON: Sure. Not guilty of the offense charged or any lesser included offense. I think the clarifying language that I proposed is important.
JUDGE CANNONE: I do too. And I appreciate that.
MR. JACKSON: I think with that commitment to the slip and the clarifying language, I think coupling those up is exactly what the defense was asking for. I appreciate that. So I need to—
JUDGE CANNONE: I need to clean this up. I'd like to send in a written copy of what I just read. I have a couple of things bolded. I need to fix this up a little bit. I mean, it was just done quickly. The jury's been waiting. Why don't we bring them in? And I will tell them that a new verdict slip will come to them. How's that? I do, though, have to make a finding that the verdict slip as is was proper. All right. So we'll just leave it at that. I'll make the amendment that you want. But that's my finding.
MR. JACKSON: Noted. Once the new verdict slip is prepared and ready, we all need to see it.
MR. YANNETTI: I was just going to ask. Do we have that emailed to us or something?
JUDGE CANNONE: Yeah, we all need to see it. I will work with Tori. All right. All right. Can we bring the jurors in, please? Oh, I'm sorry. Any suggested language on the CERT report?
MR. JACKSON: I'm sorry, Judge. Any suggested language on their question? No. I think that the court's correct in terms of the CERT report request. The court's answer is right on point, which is that you are directed to review the evidence that's in front of you, and that's it.
JUDGE CANNONE: I'm just going to say you have all the evidence in this case. We will not give you anything.
MR. LALLY: Okay.
COURT OFFICER: All rise for the jury.
JUDGE CANNONE: So, jurors, we're in receipt of your question: "Can we request the CERT report detailing the search performed?" I take this as a request, and the answer is that you folks — you have all the evidence in the case. So what you have is the evidence in the case. You won't be receiving any additional evidence. But as long as I have you here, I want to clarify my instructions regarding your verdict as to count two of the indictment. As I instructed you yesterday, there are two lesser offenses of that crime, which are involuntary manslaughter and motor vehicle homicide, felony OUI, liquor and negligence. Therefore, count two encompasses three separate charges, the most serious of which is manslaughter while operating a motor vehicle under the influence of liquor.
JUDGE CANNONE: In considering count two, you should first focus on the crime of manslaughter while operating a motor vehicle under the influence of liquor. And if the Commonwealth has failed to prove that crime beyond a reasonable doubt, then you are to consider the remaining lesser included offenses in descending order. So the lead charge is manslaughter while operating a motor vehicle under the influence of liquor. If you find that the Commonwealth has proven all five elements of this charge beyond a reasonable doubt, then your verdict shall be guilty of manslaughter while operating a motor vehicle under the influence of liquor.
JUDGE CANNONE: If, however, you find that the Commonwealth has not proven all five elements of manslaughter while operating a motor vehicle under the influence of liquor, then you are to consider whether the Commonwealth has proven beyond a reasonable doubt the three elements of the lesser included offense of involuntary manslaughter. If the Commonwealth has proven the three elements of involuntary manslaughter, then your verdict shall be guilty on the lesser included offense of involuntary manslaughter.
JUDGE CANNONE: If, however, you find the Commonwealth has failed to prove beyond a reasonable doubt the crime of manslaughter while operating a motor vehicle under the influence of liquor and the lesser included offense of involuntary manslaughter, then you are to consider whether the Commonwealth has proven beyond a reasonable doubt the five elements of motor vehicle homicide, felony OUI, liquor and negligence. If the Commonwealth has proven beyond a reasonable doubt the five elements of motor vehicle homicide, then your verdict shall be guilty of the lesser included offense of motor vehicle homicide, OUI liquor and negligence.
JUDGE CANNONE: If, however, the Commonwealth has failed to prove beyond a reasonable doubt all the elements of manslaughter while operating a motor vehicle under the influence of liquor, and has failed to prove all the elements of the lesser included offenses of involuntary manslaughter or motor vehicle homicide, felony OUI liquor and negligence, then your verdict must be not guilty to count two. So I'm going to send in a new verdict slip on count two that's just a little bit different, and we have to indent something and change the spacing a little bit to make it a little bit clearer for you. Okay? So we'll get that to you in the next ten minutes. All right, thank you all very much. [unintelligible — possible discussion regarding distribution of the new verdict slip] [unintelligible]
COURT CLERK: Judge, we're back on the record at 22-1117. Counsel have both had an opportunity to look at the new verdict slip.
JUDGE CANNONE: All right. So does the defense say the verdict slip is in order?
MR. JACKSON: It is, Your Honor.
MR. YANNETTI: Thank you. We appreciate the court.
JUDGE CANNONE: Okay. Does the Commonwealth say the verdict slip is in order?
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: All right. So the verdict slip will go in. Officer Delano, I'll let you do what you're doing. All right. So the verdict slip will go into the jury. I instruct you, Officer Lydon, to remove the verdict slip for count number two from the jury. Have the jurors fold it, put it in an envelope, and seal it. And we'll bring that in and we'll mark that for identification. I'm also going to send in a transcript of the supplemental instruction I gave this morning. May we mark that, Madam Court Reporter, please? I have copies for counsel if you'd like.
MR. JACKSON: Yes, sir.
MR. LALLY: Yes.
JUDGE CANNONE: All right. So with that we'll be in recess. And you'll remember that the jurors were instructed that we won't take any questions or verdict during one o'clock to two o'clock. Okay. The jurors were instructed in the instructions I gave yesterday that we will not take a verdict or a question from one to two. So everybody's free to go for lunch.
COURT OFFICER: All rise for the court, please.
UNKNOWN: The jurors have indicated they want to go home, so they're coming over. All rise for the jury. Be seated. Court is in session.
JUDGE CANNONE: All right, jurors. You've been working hard today. I understand you want to go home. So we'll suspend for the day and we'll see you tomorrow morning ready to start right at nine. So please follow those same three instructions. 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. Put the whole case out of your mind until tomorrow. We'll see you tomorrow. Thank you.
COURT OFFICER: [unintelligible]
JUDGE CANNONE: All right. We'll see you tomorrow. All rise please. We'll be in recess. Good-bye.