Commonwealth v. Read — Trial ArchiveRule 14 Objection
116 linesMR. JACKSON: Your Honor, I'm so sorry for the false start. I wanted to make one final record on the Court's ruling.
JUDGE CANNONE: Okay.
MR. JACKSON: I respect the Court's ruling.
JUDGE CANNONE: Go ahead. You can make your record.
MR. JACKSON: Maybe it would be better if I did it over here. I wanted to interpose an objection to --
JUDGE CANNONE: I think it would be better if you did it over here.
MR. JACKSON: It's just a legal motion.
JUDGE CANNONE: I don't know what you're doing. Come over here and tell me what you want to do, and then I'll let you go back there and do it, because you had ample opportunity to do it.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So what are you doing?
MR. JACKSON: I didn't have ample opportunity.
JUDGE CANNONE: I just don't know if you're showing photos or you're describing the photos.
MR. JACKSON: No. No. I'm going to cite a case. That's what I'm going to do.
JUDGE CANNONE: Okay.
MR. JACKSON: I'm just going to cite a case.
JUDGE CANNONE: Okay. That's fine.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Okay. As it relates to the four exhibits that the Court deemed were not admissible because of a violation of Rule 14, I wanted to elaborate just very briefly on our objection.
JUDGE CANNONE: Go ahead.
MR. JACKSON: We believe that under Rule 14, we were not obligated to have to present these exhibits to the Commonwealth in discovery. Rule 14 does not require such disclosure when the exhibits are used for impeachment only. And that's exactly what those four exhibits were going to be used for and what we intended to use them for. Had this witness said: I know Caitlin Albert. We've been friends for 10 years. We went to high school together. We've been on day trips together. We've been to the beach together and we've socialized together, I wouldn't have to show any photographs. But that's not what she said. What she said was, I went to high school with a person named Caitlin Albert, which is a bastardization of the truth. That's not the truth. And those four photographs are what got her, in the voir dire process, what got her to admit that she, in fact, does know Caitlin Albert and knows her on a very, very different basis than she first suggested. As the SJC has explained in the case of Commonwealth versus Aguiar, A-G-U-I-A-R, at 400 Mass. 508, pin site at 513, it's a 1987 case that says the following. And then I'll finish my record. (As read), quote, "A defendant has a constitutional right to bring to a jury's attention any circumstance which may materially affect the testimony of an adverse witness which might lead the jury to find that the witness is under an influence to prevaricate. It matters not that the evidence would reveal an otherwise inadmissible fact such as the witness's commission of a crime.
MS. MCLAUGHLIN: judge may not restrict cross-examination of a material witness by foreclosing inguiry into a subject that could show bias or prejudice on the part of the witness," end quote. And that's exactly what we believe we were entitled to do with Katie McLaughlin as a witness for the Commonwealth. She has bias, or at least the jurors can consider a bias. She has prejudice. The jurors could consider a prejudice because of a pre-existing relationship with Caitlin Albert about which she was not truthful. So I wanted to make that record and suggest, ask the Court to reconsider whether or not those four exhibits could be introduced. I don't need to make any big deal about it. I don't want to call her back to the stand. But I think the jurors, now having had the description of those photographs, should be able to see them in evidence, and I would submit.
JUDGE CANNONE: All right. So that request is denied. The record is clear. So Ms. Read is not going on this view. She just needs to make sure she is back here by the time we return. Mr. Yannetti, you're nodding.
MR. YANNETTI: Yes.
JUDGE CANNONE: You will contact her and make sure she is back here.
MR. YANNETTI: Yes. VIEW:
MR. LALLY: Good morning, again, ladies and gentlemen. Again, as I stated in the courtroom, this is my opportunity to address you here. So some of the things that we talked about in there is what I would direct your attention to now. So you find yourselves standing in a roadway. I would ask you to take note, sort of, of that roadway, of its length, both as you came in and as you exit at the close of all this. But also I would ask you to take note of just the condition of that roadway, the width of that roadway, what if anything you observe as far as lanes within that roadway, both in the middle and sort of towards the Side of the roadway. I would ask you to take note in different areas as far as the -- where that roadway ends and where sort of other properties or residences begin, where you find that to be, and specifically as it pertains to a residence to your right. I would ask you to take note of distances from areas, as far as where we’re standing now to where the driveway is, where we’re standing now to where the house is, any doors or entrances, exits, that you observe from that house, as well as anything else that you note as far as a landmark for some sort of tangible objects that you observe within specifically the front area of the home and specifically the front to the left as you’re facing the house, in that area of the front lawn/yard area of the home.
MR. JACKSON: Hi, ladies and gentlemen. Again, I would echo a lot of what Mr. Lally just Said. We just want you to get comfortable with the area surrounding the house, the roadway, the width of the roadway. I also want you to pay special intention, if you wouldn’t mind, and note an area to the right of the flagpole, its relationship to the fence, the gate, its relationship to a front door that appears in the middle of the house and another door that appears just to the left. I would also ask that you pay special attention if you can to the area of the driveway and what ingress and egress, entrance and exits, would look like at the front of the house, as well as any obstructions between those areas and the area adjacent to the flagpole here. I would also ask you to take some note of the roadway and whether or not it’s perfectly straight, whether or not you see a curvature in the roadway, the width of the roadway both from curb to curb as well as the width of the roadway from the centerline to curb, things of that nature. The last thing I’d ask you to pay attention to is simply the length of the area from the mailbox all the way up to an area -- it would be close to the natural property line, maybe here or beyond, the length as it pertains to vehicular traffic that may be parked. And that’s about it. I think with that, that would satisfy us. Thank you. Thank you, Your Honor. Oh, Your Honor, there is one other thing. There are a series of windows, both on the bottom floor and the top floor. I would ask you to pay special attention to the window on the top left of the home and its relationship to where you’re standing as well as the property area in front as well. Thank you. Thank you, Your Honor.
(Pause.)
MR. JACKSON: DISCUSSION OUTSIDE THE HEARING OF JURORS:
MR. LALLY: Your Honor, with the Court’s permission what I would ask is just to give thema few minutes to do that, then take them over to the vehicle. Mr. Jackson pointed out that he would like to see inside the vehicle. It’s just been a while since I’ve --
JUDGE CANNONE: Open the door and see inside?
MR. LALLY: Yes.
MR. JACKSON: Yes, ma’am.
MR. LALLY: Just to look prior to the jury going over there. So with the Court’s permission, that’s what we would --
JUDGE CANNONE: Sure. Where you asked them to look at the driveway, why don’t we go beyond the car first to the driveway and then walk back to the car.
MR. YANNETTI: They can’t see the mailbox.
JUDGE CANNONE: So, well, if we can tell them that we’ll walk past the car to the driveway and then come back to the car.
MR. LALLY: Okay, we can do that. END DISCUSSION OUTSIDE THE HEARING OF JURORS.
MR. LALLY: So, ladies and gentlemen, I by no way, mean, Shape or form mean to cut you short if you’re still making observations or looking at things, but at this point what I’m going to ask is for us to make our way down to the driveway just beyond the vehicle on the road, and then we’ll make our way back to the vehicle after we’ve gone over to that area, okay?
(Pause.)
MR. LALLY: So again, ladies and gentlemen, in this particular area, the same sort of general observations that I referenced before. The only other thing that I would add to that is I would ask that you take note of sort of, again, where you find these things to be, but where you find sort of property lines to begin and property lines to end, sort of any natural observations that you make in reference to that structure, things of that nature, as well as similar to when we were on the other Side of the property, now being sort of to the right as facing the residence as you walk, any sort of, you know, manmade structures or landmarks, if you will, that you observe within and around sort of the yard area as well as the driveway area.
(Pause.)
MR. LALLY: DISCUSSION OUTSIDE THE HEARING OF JURORS:
JUDGE CANNONE: Did you get that? COURT REPORTER: No.
JUDGE CANNONE: All right, hold on, please. So Ms. McLaughlin, you have to say that again. This needs to be recorded.
MS. MCLAUGHLIN: Inside the vehicle counsel noted that there is a search warrant and business card of one of the troopers. We are going inside the vehicle to remove the search warrant and any law enforcement identification cards.
MR. LALLY: They should be marked for I.D.
JUDGE CANNONE: So the Commonwealth will take possession of this right now. Did you bring stickers? COURT REPORTER: No. But that will be L for identification.
JUDGE CANNONE: Okay.
MS. MCLAUGHLIN: If I could do just a cursory look.
MR. JACKSON: Of course.
JUDGE CANNONE: All right, so Ms. McLaughlin, I’ll take that. So this is Madam Court Reporter’s. I am going to put that on there.
MR. YANNETTI: May we take this and take it back --
JUDGE CANNONE: Trash? Timmy will take it. COURT OFFICER ROSE: That’s my job.
JUDGE CANNONE: So do you want to close these doors and then open them for them? Explain to them —-- Mr. Jackson, it’s your request that we look in the car?
MR. JACKSON: It’s Mr. Lally’s request, but I have no objection.
JUDGE CANNONE: All right, so why don’t you just tell them what we are going to do. END DISCUSSION OUTSIDE HEARING OF JURORS.
MR. LALLY: So ladies and gentlemen, if you want to just come ina little bit so I’m not screaming as much. Again, not to cut you short in any respect whatsoever as to any observations that you make or want to make with reference to this area of the house or the one previous. So what I’m going to direct your attention or ask you to note at this point is with respect to a vehicle that is parked on the roadway behind you, okay? What I’m going to ask you to take note of with respect to that is, again, as I stated in the courtroom, the height of that vehicle, the width of that vehicle, the overall shape and size of that vehicle. In particular, I’m going to ask you to sort of walk around the exterior, paying close attention to sort of the height and width as you go around the vehicle. What I’m also going to ask the court officer to do is open up the front door of that vehicle so that you can make observations of the driver’s compartment of that vehicle, and in particularly, anything that you may note sort of on the dashboard, in between the driver’s seat and the passenger seat, okay? Thank you.
MR. JACKSON: Very briefly, also to dovetail into what Mr. Lally just suggested, the height, the width of the vehicle is obviously important, and I would ask you to take note of the rear end of the vehicle, the bumper area and the height, specifically, of the taillight area on the vehicle as well when you’re taking a look at the rest of the car. That’s it.
(Pause.)
JUDGE CANNONE: Anything else from the defense?
MR. JACKSON: No, Your Honor.
JUDGE CANNONE: Anything else from the Commonwealth?
MR. LALLY: No. No, Your Honor.
(Pause.)
JUDGE CANNONE: Can I see counsel, please? DISCUSSION OUTSIDE HEARING OF JURORS:
JUDGE CANNONE: How long are we going to stay?
MR. LALLY: I mean, I’m fine, but I just -- I don’t want to interrupt them or --
JUDGE CANNONE: I don’t want to interrupt them either.
MR. YANNETTI: Seems like at least a couple are still considering things.
MR. LALLY: I would say probably five, ten minutes or so at the most. That should cover it.
JUDGE CANNONE: I think as long as we stand here they are going to stay here.
MR. LALLY: That’s the other thing.
JUDGE CANNONE: But if you want, signal me when we should wrap it up, and I’1l start walking.
MR. JACKSON: About ten minutes.
JUDGE CANNONE: The chief court officer said one particular juror wanted to know how far up the driveway she could go.
MR. YANNETTI: I’m in touch with the homeowner. They gave us permission to go on the property. I can call and ask if a juror could go on the property if nobody objects.
JUDGE CANNONE: I wish we had known that before.
MR. YANNETTI: I didn’t expect that we’d go on the property.
JUDGE CANNONE: I think we said nobody could go on the property when we started all this.
MR. LALLY: I think it’s safer to just go with that. Open it up on one end, and then somebody else wants to do something else, then they want to go in the house.
JUDGE CANNONE: That’s why I asked you all to work together on the view.
MR. YANNETTI: We did.
JUDGE CANNONE: Okay.
JUDGE CANNONE: There is no guestion or answer. What does counsel suggest?
MR. JACKSON: Our suggestion would be to tell the jurors you are going to determine based on the testimony where the car was or wasn’t. It’s here more for exhibit than specificity of -
MR. YANNETTI: It’s placed randomly, right now, correct? I think that would be the answer.
MR. JACKSON: They will just have to wait on who testifies to where they saw it.
JUDGE CANNONE: I prefer not to comment at all on the evidence. We are here to stop and look. Those were my instructions. You’re merely here to look --
MR. JACKSON: I have no problem with that. As long as they don’t think it’s specifically placed, because it’s not.
MR. YANNETTI: That was the guestion.
JUDGE CANNONE: I don’t want to field questions, because if there’s one, there could be fifteen, and that’s not the purpose of the view. What is the Commonwealth’s position?
MS. MCLAUGHLIN: I would just suggest what you propose, perhaps with a limiting instruction as to they are the fact-finders and they assess the weight and credibility through the evidence that will come out at trial.
MR. YANNETTI: I don’t think there’s any evidence to be evaluated with credibility when it’s really the opposite.
JUDGE CANNONE: What I am inclined to say is that the purpose of a view is for you folks to stop and look, and observe what you’re seeing, and you can use this as evidence in your deliberations. Just sort of what I said before. I think I’m inclined to also say no one can answer questions. Do you want the question part or no?
MR. YANNETTI: I would like you to say we are not allowed to answer questions.
MR. LALLY: I think that’s good.
JUDGE CANNONE: Okay.
COURT OFFICER: We will bring them together behind the car, Your Honor?
JUDGE CANNONE: Sure. END DISCUSSION OUTSIDE HEARING OF JURORS.
JUDGE CANNONE: So, folks, the purpose of a view, as I told you before, first of all, the view is evidence. But what you are to do while we are here is to stop, look, observe your surroundings, and then later you can use this in your deliberations. It’s not a time for questions or answers. I can’t let you ask questions of counsel, and I can’t answer any questions. So that is simply the purpose, and we appreciate how close attention you all are paying to this. Thank you. DISCUSSION OUTSIDE HEARING OF JURORS:
JUDGE CANNONE: Counsel, please.
(Court and counsel gather.)
JUDGE CANNONE: Do you think we should wrap it up?
MR. JACKSON: Sure.
MR. YANNETTI: Maybe ask them if there’s any objection if we leave?
JUDGE CANNONE: I’ve never done that before. We decide when it’s time. Jurors don’t object. I’m not inclined to do that. I will give them another few minutes. I think you are very fortunate that they are paying such close attention.
MR. YANNETTI: Yes.
JUDGE CANNONE: Actually, counsel, it occurs to me that one of the jurors is pacing and measuring out pacing. It should have occurred to me earlier. They are also told that they are not to investigate, and that’s pretty-much investigation. So we’re going to wrap it up. END DISCUSSION OUTSIDE HEARING OF JURORS. COURT OFFICER. All right, folks. We are going to head back to the bus. END VIEW.
(Court resumes.)
(Defendant present. Jury not present.)
(Whereupon, paperwork from front seat of Lexus SUV was entered and marked Exhibit "L" for Identification.)
JUDGE CANNONE: All right. So, jurors, I want to remind you of the instructions that I gave you before we went on the view, and then I have a caution for you. So we took a view today, the purpose of which was to help you to better understand the evidence which you'll hear during the course of the trial, and to help you appreciate the location and its surroundings. The view that you took is part of this case and the observations that you made while on the view may be used and considered in your deliberations. Remember that I told you that what you were to do on that view is best summarized as simply to stop and look. Your responsibility was to see the place, observe it carefully and remember what you saw. You were cautioned that while on the view, you were not to take any notes or photographs and that you were not to conduct any independent investigation while we were there or at any time during the trial. So independent investigation includes but is not limited to any measurements that you have taken or attempted to take. So to the extent that any of you did that, you must totally disregard it because you must find the facts from the evidence presented to you in this courtroom. Okay? So with that, Mr. Lally, do you have a witness for us?
MR. LALLY: Yes, Your Honor. The Commonwealth would call Mr. Gregory Woodbury to the stand.