Commonwealth v. Read — Trial ArchiveProcedural - Motions
47 linesMR. BRENNAN: I would like to introduce two clips labeled four and five.
JUDGE CANNONE: Can you explain?
MR. BRENNAN: Both clips four and five are on that zip drive.
JUDGE CANNONE: Okay.
JUDGE CANNONE: There's no objection to these?
JUDGE CANNONE: I don't know what they are. Is there a second— There is another short recess. Hopefully, you'll get to walk right through the first section of courtroom this time.
COURT OFFICER: Thank you. Court, all please close your notebooks and follow me.
JUDGE CANNONE: Thank you. Please proceed. All right. So, I'll watch the first one, then I'll hear your argument, Mr. Brennan and Mr. Jackson. Thank you. So, Miss Gilman, if you play that first one, please. [video clip 4 plays]
VIDEO PLAYBACK: They had pulled into the driveway before me. So I was presuming she saw my cracked tail light and was thinking, "Did you hit my son?" I could sense from her that she was looking at me very warily. And then when John's nephew came home, I just wanted to see him and squeeze him. It was quite uncomfortable. I said, "Dad, come upstairs to the master bedroom." I said, "I think I need to leave, because I think John's mother thinks I did something to John." end clip 4
JUDGE CANNONE: All right. So, tell me why I should admit that clip.
MR. BRENNAN: You should admit this clip because it demonstrates consciousness of guilt. On the morning of John's death, Mrs. O'Keefe sees her son at the hospital and goes back to Mr. O'Keefe's home. In the driveway is the alleged murder weapon, the Lexus with the broken tail light. It's the middle of a snowstorm, and a prelude to that is there is a phone call from the defendant's father to the Dighton police looking for a ride to go in and see his daughter at the Good Samaritan Hospital. He's looking for a police ride because the weather conditions are so terrible. When the Dighton Police Department declines that ride, he gets the assistance of his son, and his son and his son's wife pick him up and bring him to the hospital. At the hospital, there are a number of comments made.
MR. BRENNAN: I think I hit something. There is evidence we have where the defendant, her mother, and her father admittedly discuss in different ways the broken tail light. It is an issue that is primary on their mind. In this tumultuous grieving moment, the tail light is central between these parties. Uninvited, the defendant and her father go to the O'Keefe house without invitation. They knock on the door and they ask to come in. They go into the house. There does not seem to be any interaction, at least with Peggy O'Keefe. And curiously, they go upstairs for 15 minutes. They stay at the house for less than an hour. This is a family that's grieving the loss of their son. Less than an hour, they go back outside. Instead of leaving in the one car, they take the alleged murder weapon.
MR. BRENNAN: They get into two cars and they drive away and remove the Lexus with the broken tail light from the scene. That is clear consciousness of guilt evidence — removing the murder weapon from an area where witnesses can see, photograph, identify the damage. In fact, despite the other evidence about the cracked tail light in the testimony, it is a centrally contested issue in this case. The defense has already questioned and confronted, as they have a right to do, about the shape, manner, and extent of that broken tail light. The removal of it is helpful for the defendant. And so, the fact that they stay for less than an hour, remove the Lexus from the scene is important.
MR. BRENNAN: This statement by the defendant is clearly an attempt to create an excuse, a ruse for why they removed the murder weapon from the scene. It is an attempt to suggest that she somehow is targeted. She somehow on that morning is victimized. She somehow on that morning is the intent, or the object, of something that is abusive from Peggy O'Keefe. And so this evidence will demonstrate a key part of our consciousness of guilt evidence on this issue — that there was no viable reason to take that evidence from the scene other than to obscure it. It was not because Peggy O'Keefe yelled at her or intimidated her or threatened her. This was again a central conversation between her, her father, and her mother in those early morning hours. This is what was foremost in their mind.
MR. BRENNAN: And so that's why it's not only relevant, it is an extraordinarily strong piece of the consciousness of guilt evidence. And inevitably the defense may or may not try to provide some type of explanation or excuse, but we have a right to the full force of our proof. And this is part of it. All right. Thank you, Mr.
MR. JACKSON: With regard to the first clip, which is clip four — that's the only one we're discussing right now. Then in that case, now that I look at it and I see the transcript, I'll withdraw an objection. I don't care. It's not — I don't agree with anything just said. It doesn't demonstrate consciousness of guilt. I think it very clearly shows the opposite. But okay, so there's no objection.
JUDGE CANNONE: So there wasn't an objection until I said, is there any objection to this? And then you all came to sidebar. I mean, they were just going to play. So there's no objection to the first clip, right?
MR. JACKSON: Yes. Correct.
JUDGE CANNONE: Okay. So let's hear an objection to — Okay. So, Mr. Brennan, play the second one, please. [video clip 5 plays]
MS. READ: And his mother leans over the kitchen island and says to me, I think it looks like he got hit by a car. It looks like he got hit by a car. end clip 5
JUDGE CANNONE: Okay. So, tell me how this comes in.
MR. BRENNAN: Similarly, consciousness of guilt evidence. The defendant making what we allege is a false statement to try to excuse her conduct of removing evidence of a crime from the scene. This has additional import. It has two facets to it — one equally as important for consciousness of guilt in the first part, as I supported for clip four. Secondly, it is important because we've heard testimony from Peggy O'Keefe that this claim never happened. So we now have direct testimony that she did not have a conversation with the defendant, did not make these claims to the defendant. And so while also consciousness of guilt evidence, it has additional support from the previous clip.
JUDGE CANNONE: Right, Mr. Jackson?
MR. BRENNAN: Thank you.
MR. JACKSON: With this video clip, your honor, it's very different. It has absolutely nothing to do with consciousness of guilt. The argument is baffling. How could that possibly be consciousness of guilt if my client is simply reiterating something that she believes somebody else said? This clip is obviously, very obviously, and strategically being used to try to vilify my client with something that's completely irrelevant. In Massachusetts, you can't call a witness just for the purposes of impeaching them. What this clip would be doing is purporting to impeach Mrs. O'Keefe, who just testified, "I never said that. I never said it. I never leaned over the island counter. Never happened." So, bringing this in would be used to impeach their own witness. And that's what can't be done in Massachusetts.
MR. JACKSON: With regard to consciousness of guilt, how does my client reiterating or stating that something that the victim's mother may or may not have said — how does that relate to consciousness of guilt? It doesn't. Uh, this is simply a wolf in sheep's clothing. They're trying to get it in because it makes my client look bad. They've just put on a very, very sympathetic and empathetic witness, John O'Keefe's mother, and they're trying to make my client, Ms. Read, look bad by saying something they perceive to be pejorative, uh, in a tone that's pejorative about that very same witness. Um, he's trying to — at this point there is no issue about whether or not Peggy O'Keefe leaned over and said something about the car or being hit by the car.
MR. JACKSON: He was trying to create the issue so that he can put this video clip in. It has nothing to do with consciousness of guilt.
MR. BRENNAN: It's not for impeachment of Peggy O'Keefe. We don't take the position that Peggy O'Keefe is lying. This is a statement of the defendant. It's in the form of an admission — a statement which qualifies for admission substantively, not for impeachment purposes. The defendant should not be able to pick and choose which of her statements do not look good for her and do not look bad for her. She made the statements. They're relevant to this case. It's not unfairly prejudicial. It's a statement that they embraced and they chose and they publicized, and it goes directly to the issue of consciousness of guilt. Just because it hurts, just because it's incriminating, just because it's difficult for the defense is not a basis to preclude it. It is an admission, a statement of the defendant.
MR. BRENNAN: It's admitted substantively.
MR. JACKSON: If that were true, your honor, then they would simply put in the transcript. They wouldn't need to play the video. The transcript is one line: "And his mother leans over the kitchen island and says to me, 'I think he looks like he got hit by a car. He looks like he got hit by a car.'" Sorry. "I think he looks like he got hit by a car. It looks like he got hit by a car." They just put that statement. They want to play this because of its prejudice, because of the tone that it sets. It's not in evidence at this point. The witness who supposedly said the statement has denied having said it and said it never occurred. This is far far more prejudicial than it is probative. If they want to simply use the transcript, that's one thing.
MR. JACKSON: But playing this video is simply being used to vilify my client because of the tone of voice she used in the clip. That's it. That's what's not allowed. That's overly prejudicial and it's not relevant.
JUDGE CANNONE: All right. So, what I'm going to do is I'm going to think about this, and if I decide to let it in, you can let it in first thing tomorrow morning. I'm not going to let it in now.
MR. JACKSON: May I ask for a ruling in the morning?
JUDGE CANNONE: Yes.
MR. BRENNAN: May I introduce the one that was not objected to?
JUDGE CANNONE: Yes. Do you want a consciousness of guilt instruction, Mr. Jackson?
MR. JACKSON: No. No. We don't believe that it — that —
JUDGE CANNONE: So, you're just — so, you're in agreement that that statement just comes in?
MR. JACKSON: We're not objecting. I'm not trying to introduce it. Don't put words in my mouth. I'm not — I said you're okay. But, uh, I'm not objecting that it — that it — at this point they should come in.
JUDGE CANNONE: Okay. We'll bring the jurors back and we'll do that. Tony, can they come right in or is it going to be five minutes? Can they come right in? Thank you. The clip that's under consideration — just admit the other one.
MR. BRENNAN: Yes.
JUDGE CANNONE: And give it to me so I can look at it tonight, and if we decide to take it off, take it off in the morning?
MR. BRENNAN: Yes.
JUDGE CANNONE: Okay. Thank you. 'Cause you can just single it out and play one, right? Okay. Thank you, Chrissy.
COURT OFFICER: All right. Please rise. Court is back in session. You may be seated.
MR. BRENNAN: Your honor, I'd like to introduce clip number four.
VIDEO PLAYBACK: [video - karen read]: They had pulled into the driveway before me, so I was presuming she saw my cracked [unintelligible] and was thinking, "Did you hit my son?" I could sense from her that she was looking at me very warily. And then when John's nephew came home, I just wanted to see him and squeeze him. I don't know if it was quite uncomfortable. I said, "Dad, come upstairs to the master bedroom." I said, "I think I need to leave, because I think John's mother thinks I did something to John."