Commonwealth v. Read — Trial ArchiveJudson Welcher - Direct (Part 2)
96 linesJUDGE CANNONE: All right. Good morning, everybody. All right. So, Dr. Welcher can testify that the data he downloaded and analyzed and the damage to the Lexus is consistent with Ms. Read's vehicle being in a collision on January 29th at 12:32 a.m. because he's a qualified expert and his opinion is based on reliable methodology appropriately applied. In addition, Dr. Welcher can testify that Mr. O'Keefe's injuries are consistent with his having been struck by a Lexus that is physically identical to Ms. Read's Lexus because this opinion is based upon, among other things, his experimental work that came into evidence without objection as to scientific methodology and application. However, he may not testify that Miss Read's Lexus collided with Mr.
JUDGE CANNONE: O'Keefe because that conclusion is not based on the application of reliable scientific methodology. The problem here is not that the opinion concerns the ultimate issue because in Massachusetts that's not a bar to admissibility. Rather, it is that Dr. Welcher, the expert, is drawing an inference based upon more than scientific method. His opinions set the stage for argument and a permissible inference to be drawn by jurors through the application of their sound judgment to the opinions that they find credible. But the jurors are as well positioned to draw or reject the inference as is the expert. That is, the inference is not compelled by the application of any scientific method. So that's the ruling. All right. So the jurors are lining up. We should have them momentarily.
JUDGE CANNONE: Thank you for the late coffee. Okay. Is Dr. Welcher right around? Why don't we bring him in if he's here before the jurors?
MR. BRENNAN: Updated version. We provided a copy to the defense with all the redactions.
JUDGE CANNONE: Okay. Are you in agreement with this, Mr. Alessi?
MR. ALESSI: I haven't gone through, but I have no reason to believe that I wouldn't be in agreement.
MR. BRENNAN: There is one slide so I'll admit it conditional to redactions that you didn't rule on, but I feel as though you probably will exclude, and that is in that version. I didn't want to pull it out with the court's order, but I'll talk to —
JUDGE CANNONE: Do you know the number? You don't have to find it if you don't.
MR. BRENNAN: It's 131.
JUDGE CANNONE: Oh, is this the — was it 130? Was it 131 yesterday too? It was. So at sidebar I said we could go back to that, and Mr. — agreed that we could go back to that.
MR. BRENNAN: So, and I know we — I thought we were starting there, and I think Dr. Welcher thought we were starting there, and then you went to 132. That was my understanding at sidebar.
MR. ALESSI: It is, but subject to me being able to object. I was basically because we wanted the jury to come in. So, I want to look at the slide.
JUDGE CANNONE: Okay. So, look at it again. That's not my understanding, Mr. Alessi. It was — you were concerned just about the heading, and then I said we'd go back to both slides.
MR. ALESSI: Oh, yeah. No, I'm okay with that. That one.
MR. ALESSI: Yes. Your Honor, your recollection is correct. Yeah.
JUDGE CANNONE: And we were going to start on that, but — you thought — because I struck it. I struck it based on the objection, but then at sidebar I said we could go back to that.
JUDGE CANNONE: That's your understanding, too. Are you sure that Dr. Welcher took off the heading on 131?
JUDGE CANNONE: I think he did, but because I think he took off from 124 to one. I think he did as well.
MR. WELCHER: I did.
JUDGE CANNONE: Thank you very much. Okay. Are they out there, Paul? Okay, thank you.
COURT CLERK: [unintelligible] All persons having any business before the Honorable Beverly Cannone, Justice of the Norfolk Superior Court, and before the county of Norfolk, draw near. Give your attendance. You shall be heard. God save the Commonwealth of Massachusetts, this court is now open. You may be seated.
JUDGE CANNONE: All right. Good morning again, counsel. Good morning again, Miss Read. Morning, Dr.
MR. WELCHER: Good morning, your honor.
JUDGE CANNONE: And good morning, jurors. So, I have to ask you those same three questions. Was everyone able to follow my instructions and refrain from discussing this case with anyone since we left yesterday? Everyone said yes or nodded affirmatively. Were you also able to follow the instruction 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 yesterday? Everyone said no or shook their heads. Thank you very much. All right, Mr. Brennan.
MR. BRENNAN: Thank you, your honor. Morning, Dr. Welcher.
MR. WELCHER: Good morning.
MR. BRENNAN: When we left off yesterday, I was asking you about some of your opinions. I'm going to ask you those questions again, but before we do, I'm going to ask you two other questions. The first is I'd ask you to turn to your PowerPoint slide 110. You want me to display it, please? I'm going to ask you a question about a series of your slides regarding this effort. This is 110. Could you also follow through to 111, 12, 13, 14, 15?
MR. WELCHER: You want me to play the videos?
MR. BRENNAN: You don't need to play the videos. I just want to acquaint you for the question. 111, 112, 113, 114, 115. How many times did you engage in testing where your arm and forearm touched the rear right of the exemplar Lexus?
MR. WELCHER: Three times.
MR. BRENNAN: In any of those three times, did it ever leave any paint on the underside of your arm or forearm?
MR. WELCHER: No.
MR. BRENNAN: If you could turn to slide 130, please. What? Could you go back one, please? Perhaps it's 131. Dr. Welcher, there we go. Could you explain the significance of this slide, please?
MR. WELCHER: Your honor, um, this is —
JUDGE CANNONE: Oh, could you take that down, Dr. Welcher?
MR. WELCHER: Sure.
MR. BRENNAN: Thank you, Mr. —. We're going to move forward. Yesterday when we left off, I had asked you — So, we need to take this. Sorry. I had asked you yesterday about some of your opinions. I want to ask you about some of your opinions relative to that last effort that you made regarding testing between the Lexus and your arm.
MR. WELCHER: Correct.
MR. BRENNAN: You had mentioned earlier on in your testimony that you reviewed a number of pieces of information and offered that you relied on some of those pieces for your opinion. Can you share with us for this part of your analysis what pieces of evidence or information did you rely on for the opinions I'm going to ask you relative to the testing on the arm contact on the tail light?
MR. WELCHER: Yes. So, it was the physical evidence at the scene, the photographs of Miss Read's vehicle, to a certain extent my analysis of the Ring doorbell and the One Meadows event, the nature and —
MR. BRENNAN: Just — your honor, pardon my interruption. I just want to know if he's reading from something or not.
JUDGE CANNONE: Looks like he's counting on his — reading from —
MR. WELCHER: No, I am counting on my fingers. So, I am counting on my fingers. The Ring video doorbell, Mr. O'Keefe's height, the type of shoes he's wearing because I needed the same type of shoes, my exemplar inspection where I matched up the heights, the locations of the lacerations, and then the text stream data as well.
MR. BRENNAN: That information that you consider — in addition to the text stream data, you considered — considering both those areas of information, do you have an opinion to a reasonable degree of engineering certainty whether the damage to the defendant's Lexus is consistent with a collision with Mr. John O'Keefe on January 29th, 2022 at around 12:32 a.m.?
MR. WELCHER: So, there's been two potential theories that I've seen on that issue. One is a glass was thrown at the rear of the vehicle and shattered it. The second one was an impact to the arm. If the impact is basically more than approximately 8 miles an hour, it will likely break the tail light lens.
MR. BRENNAN: Do you have an opinion whether, based on the data and based on the physical damage and your testing, whether that is consistent with a collision or an impact with Mr. John O'Keefe?
MR. WELCHER: It is consistent with a collision as long as it's greater than approximately 8 miles an hour.
MR. BRENNAN: Do you have an opinion whether it's consistent with an impact or collision with Mr. John O'Keefe on January 29th, 2022 at around 12:32 a.m.?
MR. WELCHER: With that caveat, yes.
MR. BRENNAN: In your testing, did you consider or do you have an opinion to a reasonable degree of engineering certainty whether John O'Keefe's injuries on his arm, and ultimately in the back of his head, are consistent with being struck by a Lexus identical to the defendant's Lexus on January 29th, 2022?
MR. WELCHER: Yes.
MR. BRENNAN: What's your opinion?
MR. WELCHER: That it is consistent with being struck by a Lexus and ultimately contacting a hard surface such as frozen ground.
MR. BRENNAN: And does that specifically pertain to January 29th, 2022 around 12:30 a.m.?
MR. ALESSI: Objection, your honor.
JUDGE CANNONE: I'm going to allow that.
MR. WELCHER: Yes, it does.
MR. BRENNAN: Sure. So what generally differentiates sideswipes or clipping contacts compared to an inline impact or a T-bone impact is — the object that you're hitting isn't accelerated up to the speed of the object that's coming in. So, for example, if I rear end a car, that car will be accelerated up as a result of the contact and they reach what's called common velocity and then they separate. And so in a glancing hit, you don't have what's called complete momentum transfer, meaning the momentum from the car — because it's a glancing hit — doesn't completely transfer to the object being struck.
MR. WELCHER: For example, you can drive down the road at 100 miles an hour and clip the mirror of a parked car and you'll break the mirror off, but you're not going to go from 100 to zero instantaneously. You're just going to keep going because you don't have all that momentum transfer. So, when you have glancing contacts, you can have much higher speeds without a lot of damage to the car because you're only in momentary contact and it's a glancing type hit.
MR. BRENNAN: You mentioned about potential damage to a car. How about potential damage to the pedestrian?
MR. WELCHER: It's the same thing. So, when you have a glancing hit to a pedestrian, this is referred to as a fender vault. In this case, they call it a fender — fenders on the front of cars because most pedestrian impacts involve the front of cars. In this case, it would be called a quarter panel vault, which means you're kind of vaulting off the corner of the car. Those are much more complicated because you don't have that common velocity that I referred to. So it's difficult to calculate the exact speeds at which the vehicle contacted without a whole bunch of information in that type of crash. If the impact has occurred in the center of the vehicle and we knew where the point of impact was and the point of rest, we'd have a much better chance of determining how fast the vehicle was going.
MR. WELCHER: But when you have just a corner clipping or glancing, it makes it more difficult to determine — even when you have an area of impact, which is where the person was and they got hit, and a point of rest where they landed — makes it more difficult for glancing contacts because you have that sideswipe problem where they don't obtain what's called common velocity.
MR. BRENNAN: And what are some of the other difficulties in attaining specificity in a sideswipe or being hit by a quarter panel as opposed to a fender? So for a pedestrian, correct?
MR. WELCHER: Yes. So pedestrian impacts and how you move post impact are very sensitive to your exact body position. For example, whether your right foot is on the ground or off the ground, whether your left foot is on the ground or off the ground, whether you jump up in response to the crash. Simply raising and lowering your arm changes the amount of rotation that's going to happen — post impact motion of the person. So, cadavers and crash dummies don't have any muscle reaction. So the motion of a crash dummy is just going to be like you're hitting a dead body, whereas people will step, try and regain their balance if possible, will do additional activities that alters where they come to rest.
MR. BRENNAN: In your studies of direct pedestrian collisions by front or back bumper as opposed to sideswipe or clipping somebody, is there a similarity or difference in type of injuries that you see?
MR. WELCHER: Yes.
MR. BRENNAN: And what is the difference?
MR. WELCHER: So in direct centralized impacts, you tend to get much more severe injuries. Really, what's occurring is you're getting that momentum transfer. So it's more — you're accelerating the person up to the vehicle. They can wrap onto the side or front of the vehicle. At higher severities, their head will hit the hood or the rear of the vehicle. So when you have that direct contact, there's actually more momentum transferred to the actual occupant. There's more applied force to the occupant as well.
MR. BRENNAN: When you see direct impacts, is there ever the existence of lower body extremity injuries, broken bones in the legs?
MR. WELCHER: So there can be both — and again it's very sensitive to where the foot is on the ground, whether the foot's on the ground, as well as the severity of the crash. In the presentation that I gave at the Collision Safety Institute on pedestrian injuries, I went through all the literature on lower extremity injuries and looked at what parameters affected that. And so depending on how it was loaded, some at 15 mph had no injuries, some at 15 mph had some fractures. It depended on how exactly the foot was loaded.
MR. BRENNAN: Is it uncommon in sideswipe pedestrian accidents to see no lower body broken bone?
MR. WELCHER: No, it is not uncommon.
MR. BRENNAN: Have you had cases that you've studied or been involved with where you've studied the effect of a sideswipe or a clipping impact where there's an absence of broken bones in the lower body extremities?
MR. WELCHER: Yes.
MR. BRENNAN: I'd ask you to turn to slide 139, please.
MR. WELCHER: Oh, sorry. I fixed those other two slides.
MR. BRENNAN: Okay. Could you share with the jury what this represents?
MR. WELCHER: Sure. So this was a trial that I was involved with in downtown Los Angeles. I've redacted the name at the top, but this was an instance where — this is an image from the police report. Well, let me see if I can — So AOI in this diagram stands for area of impact. That's where the pedestrian was when they got hit. AO is area of rest, and you can see we have information on exactly how far the pedestrian was thrown. Then on the right hand side we have photographs showing the impact to the pedestrian. This was determined by experts on both sides of this case to be between a 25 to 35 mph impact. And then what you see is a closeup on the bottom slide of where there was DNA transfer — hair and tissue samples — on the vehicle from the individual that was hit by the vehicle.
MR. BRENNAN: Next slide, please. And what does this represent?
MR. WELCHER: So this is the decedent in the case, the person that was hit. He was killed at the scene. What you see on the left hand image — oops — on the left hand image is he had a massive laceration to his right forearm, but it didn't break his arm. There was no broken bones in his arm. On the right hand side of this image, you see the autopsy report. What you'll notice is he had red marks on his leg, left buttocks, but he had no leg fractures. And again, this individual was hit at between 25 to 35 miles an hour.
MR. BRENNAN: Can you expand that?
MR. WELCHER: I'm sorry.
MR. BRENNAN: Do you want that expanded like other times?
MR. WELCHER: There you go. Thank you. I'm sorry to interrupt you.
MR. BRENNAN: Yeah. No, my pleasure. Thank you.
MR. WELCHER: So at the top, he had a severe brain injury, which again is the most common injury in pedestrian crashes. He did have fractures of the right 11th and 12th rib, and a liver laceration. If you look at the extremities, it says right upper extremity. Again, that's from a shoulder to the end of the hand — extremity wound with vascular injury. So, no fractures. If you look where I was talking about the multiple abrasions, so when they're looking at the lower extremities, they're noting a number of red marks, but there was notably no fractures to the lower extremities.
MR. BRENNAN: Thank you. You can take that down, please. Dr. Welcher, regarding your analysis of the data and the evidence in this case, do you have an opinion to a reasonable degree of engineering certainty whether the absence of lower body breaks to Mr. O'Keefe is consistent with the defendant's Lexus impacting in a sideswipe or clipping Mr. O'Keefe?
MR. WELCHER: Yes, you could definitely have this type of impact and not have anything beyond, say, red marks to the lower extremity.
MR. BRENNAN: Thank you, Dr. Welcher.
MR. BRENNAN: I would move to evidence, subject to redactions, Dr. Welcher's PowerPoint presentation.
MR. ALESSI: That's by agreement, your honor.
JUDGE CANNONE: Thank you. Put in both the flash drive and the notebook representation — it's consistent, the same. So let's put them both together now and decide later.
MR. BRENNAN: Okay, those two slides are incorrect on the flash. Okay, so we'll switch that. Thank you.
COURT CLERK: What exhibit number is it?
MR. BRENNAN: 206.
JUDGE CANNONE: Thank you. 206 A and B. All right, Mr. Alessi, whenever you are ready.