Commonwealth v. Read — Trial ArchiveDeliberation — Day 1
120 linesP R O C E E D I N G S June 26, 2024
(Court in session at 9:12 a.m.)
(Defendant present. Jury present.)
COURT CLERK: 22-117, the Commonwealth versus Karen Read.
JUDGE CANNONE: All right. Good morning, counsel. Good morning, Ms. Read. Good morning, jurors. So I have to ask you all, including the alternates, 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 an 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.
(Whereupon, the jury exited the courtroom to resume deliberations at 9:13 a.m.)
JUDGE CANNONE: All right. So, counsel, I don't want the jury to have to wait for us for anything today. So you are to stay in the building until 10. I need you back here for the afternoon no later than 3:30. You will 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.
(Whereupon, there was a brief recess taken at 9:14 a.m.)
(Court resumes at 9:29 a.m.)
(Defendant present. Jury not present.)
COURT CLERK: Judge, we are back on the record on 22-117. I believe we have a question from the jury.
JUDGE CANNONE: Yes. It is simply, "Good morning. The jury is kindly requesting to conclude deliberations in time to board the bus at 4:00 p.m. A juror has a long-existing scheduling conflict." So I'm just going to simply say yes and send it back.
MR. JACKSON: No objection.
MR. LALLY: That's fine, Your Honor.
JUDGE CANNONE: Could you mark this, please?
COURT REPORTER: Sure. That would be "PPP" for Identification.
JUDGE CANNONE: Thank you.
(Whereupon, communication from the jury was entered and marked Exhibit "PPP" for Identification.)
JUDGE CANNONE: All right. We will send it back in with you, Officer Delano. All set.
(Whereupon, there was a brief recess taken at 9:30 a.m.)
(Court resumes at 10:02 a.m.)
(Defendant present. Jury not present.)
COURT CLERK: 22-117.
JUDGE CANNONE: So why are we out here?
MR. JACKSON: Your Honor, I just saw the verdict forms and, as we discussed yesterday, the amendments that the Court indicated it would make on the verdict forms have not been made.
JUDGE CANNONE: Oh, no, no, no. Okay. I did not say I'd make it. I said I would think about it. I said I was tired and I needed to think about it.
MR. JACKSON: Well, what you said before you were tired and you needed to think about it was you agreed that there needs to be not guilty options for the subordinate charges under Count 2.
JUDGE CANNONE: 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: Well, can I ask you a question, then? I don't really care how it always in is Massachusetts. I care about whether or not it is appropriate.
JUDGE CANNONE: It's appropriate.
MR. JACKSON: Those are two different things.
JUDGE CANNONE: It's appropriate.
MR. JACKSON: Let me make my argument, if you wouldn't mind, Judge, why it's not appropriate. For a 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 a 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: 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 to guilty of involuntary manslaughter on that verdict form?
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"? I don't --
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 2, 3 or 4, the verdict slip reads "not guilty." Okay?
MR. JACKSON: That is --
JUDGE CANNONE: That's how it is, Mr. Jackson.
MR. JACKSON: Well, apparently that's how it's going to be because Court's ordered it. But that's 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 of the subordinate charges.
JUDGE CANNONE: I disagree with you. Mr. Yannetti, you've seen verdict slips exactly like this?
MR. YANNETTI: I actually haven't, Your Honor.
JUDGE CANNONE: You've had no lesser includeds?
MR. YANNETTI: No. We've always had lesser includeds, but I have not seen a verdict slip there where not guilty is not an option for a lesser included.
JUDGE CANNONE: I disagree.
MR. JACKSON: And I don't see the --
JUDGE CANNONE: Excuse me? This is funny, Ms. Read? All right. We're done.
(Whereupon, a brief recess is taken.)
(Court resumes at 11:49 a.m.)
(Defendant present. Jury not present.)
COURT OFFICER: Court is back in session. You may be seated.
(Whereupon, jury communication was entered and marked "QQQ" for Identification.)
COURT CLERK: Judge, we have a question from the jury. It's been marked "QQQ" for Identification.
JUDGE CANNONE: Okay. The question, "Can we request the SERT 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 of the evidence in this case. We will 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 is easily clarified with a supplemental instruction. I don't think it's the verdict slip. I think it's how they are 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 this works out -- I received this about 15 minutes ago, 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 the question.
And I would say, "As long as I have you here, I want to clarify my instructions regarding your verdict as to Count 2 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 2 encompasses three separate charges, the most serious of which is manslaughter while operating a motor vehicle under the influence of liquor. "In considering Count 2, 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, 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. "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.
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. 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 2.
MR. JACKSON: May I have just a moment?
JUDGE CANNONE: Yes.
(Whereupon, there was a brief pause.)
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, it says the two words "not guilty." We would ask that the verdict slip read, "Not guilty of the offense charged or any lesser included offense." That's it. And I think that and the Court's clarifying instruction would satisfy the defense. Not I think. I know it will. That's all we ask. And I can repeat that if the Court wishes.
JUDGE CANNONE: So there are some like minor changes we have to make to the verdict slip anyway. It has to be consistent. So the manslaughter while operating a motor vehicle under the influence, the tab needs to -- actually, Tori -- so there needs to be some physical changes in 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?
MR. LALLY: No, Your Honor.
JUDGE CANNONE: 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."
JUDGE CANNONE: I think the clarifying language that I proposed is important.
MR. JACKSON: I do too, and I appreciate that. I think with that amendment to the slip and the clarifying language, I think coupling those up is exactly what the defense was asking for, and I appreciate that.
JUDGE CANNONE: So I need to -- I'd like to send in a written copy of what I just read. There are a couple of things bolded. I need to fix this up a little bit. It was just done quickly.
MR. JACKSON: Okay.
JUDGE CANNONE: The jury has been waiting. Why don't we bring them in and I will tell them that a new verdict slip will be in.
MR. JACKSON: Thank you, Your Honor.
JUDGE CANNONE: I do, though, have to make a finding that the verdict slip as is was proper. All right. So we will just leave it at that. I will read the amendment that you wanted. That is my fault.
MR. JACKSON: Thank you, Your Honor. Just from a logistics standpoint, once the new verdict slip is prepared and ready --
JUDGE CANNONE: We all need to see it.
MR. JACKSON: I was just going to ask. Can we have that emailed to us or something?
JUDGE CANNONE: Yes. We all need to see it. I will work -- all right. Bring the jurors in, please. I'm sorry. Suggested language on the SERT report?
MR. JACKSON: I'm sorry, Judge?
JUDGE CANNONE: Any suggested language on their question?
MR. JACKSON: No. I think the Court's correct, that in terms of the SERT report request, the Court's answer is right on point, which is you are directed to review the evidence that is in front of you and that's it, or however you --
JUDGE CANNONE: I am just going to say, you have all the evidence in this case.
MR. JACKSON: Yes. Yes. I was stumbling.
(Whereupon, the jury enters the courtroom at 11:58 a.m.)
JUDGE CANNONE: All right. So, jurors, we are in receipt of your question, "Can we request the SERT 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 this 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 2 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 2 encompasses three separate charges, the most serious of which is manslaughter while operating a vehicle under the influence of liquor.
In considering Count 2, 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 you verdict shall be guilty of manslaughter while operating a motor vehicle under the influence of liquor. 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. 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.
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 2. So I am going to send in a new verdict slip on Count 2. It's just a little bit different and we have to sort of change the -- we have to indent something and change the spacing a little bit to make it a little bit clearer for you. Okay? So we will get that in to you in the next 10 minutes. All right? Thank you all very much.
(Whereupon, the jury exits the courtroom to resume deliberations at 12:02 p.m., and a brief recess is taken.)
(Court resumes at 12:45 p.m.)
(Defendant present. Jury not present.)
COURT OFFICER: Court is back in session. You may be seated.
COURT CLERK: Judge, we are back on the record in 22-117. 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. Thank you, and 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 do. So the verdict slip will go in to the jury and I instruct you or Officer Lydon to remove the verdict slip for Count No. 2 from the jury. Have the jurors fold it, put it in an envelope and seal it. And we will bring that in and we will mark that for identification. I am also going to send in a transcript of the supplemental instruction I gave this morning. May we mark that, Madam Court Reporter, please?
COURT REPORTER: Yes, Your Honor. That is "RRR" for Identification.
(Whereupon, additional written jury charge was entered and marked Exhibit "RRR" for Identification.)
JUDGE CANNONE: I have copies for counsel.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. All right. So with that, we will be in recess. And you'll remember that the jurors were instructed that we won't take any questions or verdict from 1:00 o'clock to 2:00 o'clock.
MR. JACKSON: I missed that last part, Judge.
JUDGE CANNONE: The jurors were instructed in the instructions I gave yesterday that we will not take a verdict or a question from one to two.
MR. JACKSON: Understood.
JUDGE CANNONE: So everybody is free.
MR. LALLY: Thank you.
MR. JACKSON: Thank you, Your Honor.
COURT REPORTER: "S" for identification is the initial verdict slip on Count 2 in a sealed envelope brought by Officer Paul Delano. To correct the record, it is marked "SSS" for Identification.
(Whereupon, initial verdict slip for Count 2 in sealed envelope was entered and marked Exhibit "SSS" for Identification.)
(Whereupon, there was a luncheon recess taken at 12:55 p.m.)
A F T E R N O O N S E S S I O N
(Court resumes at 3:35 p.m.)
(Defendant present. Jury not present.)
COURT OFFICER: Court is back in session. You may be seated.
JUDGE CANNONE: So the jurors have indicated they want to go home.
COURT REPORTER: This will be "TTT" for Identification.
(Whereupon, communication from the jury was entered and marked Exhibit "TTT" for Identification, and the jury entered the courtroom at 3:38 p.m.)
JUDGE CANNONE: All right, jurors. You've been working hard today. I understand you want to go home. So we will suspend for the day and we will 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 will see you tomorrow morning. Thank you.
(Whereupon, the jury exited the courtroom.)
JUDGE CANNONE: All right. We will see you tomorrow.
(Whereupon, the Court adjourned.)