Commonwealth v. Read — Trial ArchiveProcedural - Motions
96 linesJUDGE CANNONE: All right. Good morning. So, I just saw a transcript that was placed here — maybe referenced this morning — and there's a motion to limit Dr. Rentschler that I just got that I'm not prepared for. So, that will do later today. Okay. All right. Um, so the Commonwealth's motion to call witnesses in rebuttal. I've read everything. Um, Miss Little, I appreciate you getting your opposition to me. I think I had it by Saturday morning, so I appreciate it. I read all the cases on it. Uh, does the defense want to be heard any further on this? Yes, speak into a microphone. Speak into a microphone.
MS. LITTLE: With regard to Dr. — the Commonwealth has been on notice that the defendant intends to present a defense regarding the arm injuries, that this was caused by a dog bite. They have been on notice of that not just for months but for years — that was presented at the first trial. The Commonwealth does not have a right to rebut information that they have been on notice of from the start of the case. So their decision to wait for rebuttal to call these two witnesses is improper and we're asking the court to exclude their testimony. All right. As it relates to Dr. Welcher, the scope of his testimony — our request is that that be limited to very specific information, specifically responding to the new testing that ARCCA has done.
MS. LITTLE: As the court knows, the Commonwealth has proposed a number of new testing ideas as well as information that is greatly outside the scope of what ARCCA intends to testify to. And so we're asking that the court limit their testimony from engaging in new testing that has nothing to do with what ARCCA has testified about at this trial. With regard to Dr. Welcher's testimony — the court has made very, very strong rulings that Dr. Wolfe as well as Dr. Rentschler are not allowed to speak to the credibility of Dr. Welcher himself. And so some of the information that the Commonwealth proposes is to directly attack the testimony of Dr. Wolfe and Dr. Rentschler. And under the court's rulings, we're asking that the court limit that scope as well.
JUDGE CANNONE: And I told you I would. Thank you. All right. Thank you, Mr. Brennan. Do you want to be heard regarding DNA evidence?
MR. BRENNAN: Evidence cannot be rebutted until it is introduced, because the defense has a number of potential ideas of areas of testimony — it does not compel the Commonwealth to try to anticipate or deflect attacks, especially if they're meritless. And so the issue of dogs and dog DNA does not become relevant until the defense calls a so-called dog expert. They raise the issue — if properly — on grounds for rebuttal. There are three witnesses: Miss Hartnett, UC Davis, and Dr. Crosby. If Dr. Lopea is precluded from testifying about dog bites, we would not call Dr. Crosby as a witness. However, regardless of what Dr. Lopea says, we would ask to call Miss Hartnett and to call the witness from UC Davis. It is an issue that directly affects the assessment of Dr.
MR. BRENNAN: Russell, the very expert they chose to call to the case in chief, and so we can — from my perspective — properly rebut. Second issue regarding Dr. Welcher, limited to the new information: you will see from the testimony, or have heard — most of the testimony is new, but we understand it's limited. We don't expect Dr. Welcher to have a direct comment on the credibility of any witnesses, but he will address the tests, how he believes it would be the proper procedure, and there'll be a number of issues that have been raised on examination, but he will not in any way have a comment on the credibility of the defense expert.
JUDGE CANNONE: All right. So, the case law supports me allowing this motion. I'm allowing the Commonwealth's motion. So, the motion for rebuttal witnesses is allowed. Mr. Brennan has said he will not call Dr. Crosby, depending on the testimony that comes in. So, all right, Jim, I'm just going to give you this. Thank you. All right. So, the motion regarding the testimony of Dr. Lopea. So, the Commonwealth is moving specifically to exclude — oh, there's a motion to exclude irrelevant photographs. We'll deal with that after the main motion to exclude certain testimony. So, if we start on page seven of the report — that's where you want me to start, Mr. Brennan. You're on.
MR. BRENNAN: Okay.
JUDGE CANNONE: Page seven of your report. I have some questions. So, Mr. Jackson, Dr. Lopea cannot opine about the investigation of the case, the law enforcement investigation. She does that throughout her report. So she can't opine to that. But when we get to page seven, what do you say is out, Mr. Brennan?
MR. BRENNAN: I mean, I've gone through it. I know what I think, but it's the Commonwealth's motion. I think that her opinion about no object being present causing pattern injury is appropriate.
JUDGE CANNONE: And where are you on page seven, the first paragraph?
MR. BRENNAN: Yes. Photographs and descriptions of the site. It is the —
JUDGE CANNONE: All right. I might have a different page seven. So my page seven — okay. Top paragraph. Okay. Yep. Dr. Lopea's proposed opinion that photographs, description of the site where Mr. O'Keefe's body was found show no object capable of producing a patterned injury — I think is appropriate. "His body was found on flat grassy ground, probably frozen and covered with a minimum amount of snow" is appropriate. It is the next paragraph where — it begins in the middle of the sentence — "It is logical to conclude that Mr. O'Keefe was injured elsewhere and his body was moved to the front lawn." There is no basis in fact for that opinion. Yeah. So I told you that on Friday, Mr. Jackson.
MR. JACKSON: Great.
JUDGE CANNONE: Okay. So, that's out. And Mr. Jackson, again, the medical examiner erred in her diagnosis of hypothermia. Again, that's the improper critiquing of the expert. She can say that it wasn't hypothermia, obviously. Okay. So, same with the first sentence of the next paragraph: the Wischnewski spots were misidentified.
MR. JACKSON: Great. All right. So we can probably do this much quicker then. All right.
JUDGE CANNONE: All right. So page eight is fine. So now we go to page ten. So this is the dog bites. So if you want to pick it up at — what does the Commonwealth say about this?
MR. BRENNAN: At this point, there's no basis provided that she has the training, expertise, methodology to provide an opinion regarding a dog.
JUDGE CANNONE: What's the offer of proof on this, Mr. Jackson?
MR. JACKSON: She'll — it'll be more extensive when I establish foundation testimony, but basically she's not only done autopsies involving dog bites and the wound pattern recognition related to the source of those dog bites, she's also taught classes on pattern wound recognition, coming up with diagnoses concerning the source of specific pattern wounds. She has a methodology she uses.
JUDGE CANNONE: Sorry — medical school? What does she teach? Is this in her CV? Because I didn't see it.
MR. JACKSON: It will be in her foundation that I will lay for the jury. All right. I won't receive any opinions unless foundation is properly laid, but she has extensive experience, not only specifically with autopsies that she's conducted herself, but supervising autopsies others have conducted — to deal with pattern recognition, the methodology involved with pattern recognition.
JUDGE CANNONE: How about dog bites specifically?
MR. JACKSON: Dog bites specifically — five autopsies. I believe she's done five autopsies as they relate to dog bites. Okay. A class specifically on the issue of pattern recognition, which that class includes dogs.
JUDGE CANNONE: All right. So we'll need a short voir dire of her on this before she testifies, because the court doesn't believe that I can lay the foundation in front of the jury.
MR. JACKSON: I won't ask any ultimate question until we go to sidebar, but I think we short-circuit that — she's very specific about the dog bites here.
JUDGE CANNONE: So if she's seen five autopsies with dog bites, I'm not inclined to give it to you. Okay?
MR. JACKSON: Not that she's only seen five — she's performed five.
JUDGE CANNONE: Okay. So that's why we need a voir dire. So we need a very short voir dire.
MR. JACKSON: She's also been qualified on the issue of dogs in federal court as well.
JUDGE CANNONE: Okay.
MR. JACKSON: She has a plethora of foundations.
JUDGE CANNONE: Has that been provided to the Commonwealth in advance of today?
MR. BRENNAN: None of it has.
MR. BRENNAN: So, here's the difficulty. Whether it's a voir dire or it's in front of a jury, I have absolutely no
MR. BRENNAN: ability to research and cross-examine her on dog bites. She can say she had one case or 50 cases, that she testified in state or federal court, that she took a class. I can't verify it. I can't contradict it. I have no ability to prepare for this witness about her basis, methodology, and experience in dog bites. What I have is her showing a couple pictures from her book, and she has some Google or stock research in her report. And so the idea that she has a history or basis is going to be uncontested because there's nothing I can do to contest it, and that's not appropriate. I should be able to research, get transcripts, vet, and be able to approach the witness on whether or not she actually has the reliability and education and experience. I can't do that.
MR. BRENNAN: If we want to compare apples to apples —
PARENTHETICAL: [unclear]
MR. BRENNAN: was allowed to testify, to specifically testify to the wound pattern, his interpretation of wound pattern recognition. Back then, that was nowhere in this report. That was objected to by the defense. Mr.
PARENTHETICAL: [unclear]
MR. BRENNAN: , at a sidebar, strenuously objected — said this is nowhere in the report, we didn't have any notice of this. And the court said he's allowed to testify to pattern recognition, at least in his mind — you can cross-examine. There is no
JUDGE CANNONE: Requirement that the Commonwealth had every single case that the doctor has ever dealt with. No — we had an expert on dog bites who I allowed to testify as to dog bites. We had — as you know, it was Mr. Lally, I think three days with Dr. Russell on the voir dire. This is new to me. I'm going to have a short voir dire on what she can testify to.
MR. JACKSON: I have no problem with voir dire. I just wanted to short circuit it.
JUDGE CANNONE: All right. So let's go on to page 17. Objection to the third line: "Pattern injuries on his right arm do not correspond to injuries that could have been produced by regular fractured plastic pieces impacting." She is not qualified as an accident reconstructionist or biomechanical engineer. She has done none of that. She does not have the experience, the background, or the ability to do that. What do you say, Mr. Jackson?
MR. JACKSON: No, I believe she does, as a medical examiner, have the experience and the qualification — sorry, the specific job and the qualification of a medical examiner — to opine on pattern injuries, if the foundation is laid, especially as it relates to motor vehicle accidents. Now, we're not talking about dog bites, which are a defined subset of her overall experience. We're talking about motor vehicle accidents that she is specifically seeing — thousands, multiple thousands. If the proper foundation is laid, that the wound pattern that I see on the arm is inconsistent with anything I've seen in terms of a motor vehicle accident. So let's just find out how many motor vehicle accident autopsies she's done.
JUDGE CANNONE: What I have a question about is "tail lights are typically made of durable polycarbonate or acrylic plastic." I would keep that out. I'd be inclined to allow in "the injuries on his right arm do not correspond to injuries that could have been produced by plastic pieces impacting his arm." But let's hear about that. And also, the last sentence — I think it's okay, and we'll see with voir dire. "Neither did his skin show any array of irregular, unpredictable, randomly scattered cuts and scrapes" — assuming she has experience with autopsies of motor vehicle accidents. But I would keep out the part "as would be expected from pieces of shattered tail light."
MR. BRENNAN: Was there more on that? I object to that because this is now another witness coming in under the guise of some type of specialty, but really accident reconstruction.
PARENTHETICAL: [unclear]
MR. JACKSON: "Injuries produced by contact with a vehicle include a component of tissue crushing force as the car profile contacts —" that's basic. I believe that she does have the qualifications to testify about that. That's pretty standard, and that should be —
JUDGE CANNONE: All right. So let's see what she says on voir dire regarding her experience with accident
MR. JACKSON: Victims. I think she gets more into the accident reconstruction on the next page, which I don't think is proper, which I am not seeking to introduce.
JUDGE CANNONE: All right. So that whole first paragraph on the next page, you're not seeking to introduce.
MR. JACKSON: Yeah. At least the first — we're starting with the first sentence. Yes.
MR. BRENNAN: She has absolutely no experience in accident reconstruction, or the injuries — she is not a biomechanical engineer. They have one and he's going to testify.
JUDGE CANNONE: Yeah, I have that as out. Mr. Jackson, the reason that I believe it's appropriate is because you don't have to be a biomechanical engineer to understand, when you see for instance a pedestrian accident, what are the results? Especially if you see hundreds, or maybe even thousands — what results do you typically see in the wound patterns? For instance, crushing forces, broken bones, fractured bones, crushed soft tissue, things of that nature, internal bleeding. That's the problem. Exactly what they are trained to identify and to opine on.
JUDGE CANNONE: So get into things like — for instance, what she doesn't have the experience to do is say, when a car is involved in a rollover collision, these are the mechanical forces that are exerted on the body during a rollover, and that the body is subject to in a rollover — things of that nature. A car is impacted head-on by another car, there are a number of G-forces that are put upon the body itself.
JUDGE CANNONE: Second of all, I'm not —
MR. JACKSON: Those are biomechanical issues, have nothing to do with her expertise, and I wouldn't be seeking anything like that. But once the body is removed from the car and then it's on the autopsy table, that's where her expertise begins. She can talk about — I believe she has the experience and the qualifications to talk about what the body suffers at the hands of a vehicle in a pedestrian incident or accident.
JUDGE CANNONE: Okay. So the first two sentences are out. The third sentence, she can testify that Mr. O'Keefe had no bruising on his arms or torso. And she can testify — she cannot say that would have resulted from the impact with the SUV rear profile. She can say Mr. O'Keefe did not have bruises on his legs. She cannot say "from bumper contact," but she can say "as shown by dissection of leg tissue and muscle at autopsy." And she can't testify to anything else in that paragraph.
MR. JACKSON: Is the court ruling that she cannot say anything about the human body contacting a motor vehicle? That sounds like what the court's saying.
JUDGE CANNONE: No, I think that's too narrow a ruling. You can put this in. What I said you could put in can come in. And the rest cannot.
MR. JACKSON: Just for point of clarification — if I asked her, would you expect — I'm just going to make a hypothetical. Would you expect, if his legs were contacted by a moving vehicle, would you expect to see bruising?
PARENTHETICAL: [unclear.]
MR. BRENNAN: Asking the question. Secondly, this is asking dr. lopea to do reconstruction. She's not assessing a wound. I'd ask you to consider the case of Commonwealth v. Hills — I think we provided it at 105 Mass. App. Ct. 1124, a 2025 case — in which a similar attempt was made to try to use dr. lopea as a biomechanical accident reconstructionist. The judge did not credit her proffer and found that she failed to meet the Daubert criteria, and so recently has been found by at least another court that she's not competent to do this. Being a medical examiner does not allow her to come in and start endorsing or vouching for the witnesses they already have — witnesses to do that.
MR. BRENNAN: And so, not only on page 18 — going back to page 17 — about the pattern injuries: "don't correspond to injuries" involving the tail lights. She would only know that if she had the training and experience. I'm sorry. Where you said on page 17 you would allow — "Mr. O'Keefe's pattern injuries on his right arm correspond to injuries that could have been produced by regular fractured plastic pieces impacting his arm" — that's not her role as a medical examiner. That is the role of an accident reconstruction biomechanical engineer. And she clearly is not competent — at least as cited by the appeals court — to have that type of opinion. And so there's one thing to assess, there's another to try to correlate or draw a distinction between the wounds and a car.
MR. BRENNAN: It is essentially giving an opinion to the jury: he didn't get hit by a car. That is the core fundamental theory of the defense. This is simply trying to bootstrap another witness to give that opinion. That's improper.
JUDGE CANNONE: All right.
MR. JACKSON: Sure. Tompkins — that case dealt with a situation in which the witness was called and she was asked by the lawyers specifically in that case — the lawyers who called her — to opine about blood stain pattern recognition, blood spatter evidence on the driver's seat versus the passenger seat, and what her opinion was about who actually was driving the vehicle in a rollover collision in which people were ejected from the car. She was then asked to opine about blood staining patterns in the driver's seat and whether that was more or less consistent with the blood — the originator of the blood — one particular individual: was he more likely in the driver's seat or the passenger seat at the time of the bleeding, and was it before or after the rollover? Very, very different set of facts.
MR. JACKSON: And of course that is a biomechanical engineer's problem, and the court was correct in saying I'm not going to credit her. — testimony on that issue. But that's what she was asked. She said, "I'm not going to credit her testimony."
JUDGE CANNONE: All right. So, this type of analysis and pattern recognition, which is what she — so, let's see with her this morning. Okay.
MR. JACKSON: She actually was allowed to testify about [garbled: what matters/reconstruction testimony], but she was not allowed to testify.
JUDGE CANNONE: I read the superior court judge's decision. I have not read the appeals court decision, so I need to do that. I'd like to get going. But there are photographs of inside the garage. You intend to put this in through Dr. Loisada?
MR. JACKSON: No.
JUDGE CANNONE: Through whom?
MR. JACKSON: Um, with regard to these photos, well, ultimately it will be shown — they'll be introduced through our investigator, who we intend to call.
JUDGE CANNONE: And what will that investigator say?
MR. JACKSON: These are photographs. So, he will testify to two subject areas. One would be: he took measurements from the street to the various entrances to 34 Fairview Road. He'll testify about what those measurements were. And then — he took several photographs. We have pared them down into, I think, three or four — just one establishing shot showing the garage from the street. And then a couple of photos showing the side entrance to the garage, the pedestrian entrance to the garage, which also show the interior of the garage, including a step. And a —
JUDGE CANNONE: For what purpose? How are they relevant? I'm sorry. How are they relevant?
MR. JACKSON: So, the defense is presenting a defense in this case. We are alleging that the police did not do a thorough investigation. They did not really investigate anyone other than Karen Read. The [unintelligible] evidence, including the testimony of Ian Whiffin, is consistent with John O'Keefe, after what they claim to be the trigger event in Dr. Loisada's initial report. John O'Keefe would keep walking in a westerly direction, which would be from Fairview Road to the house, taking approximately 36 steps over a distance of 25.4 meters, which is approximately 84 feet. That is consistent with him entering the house. It's consistent with him entering the garage. The police did not take photos of the garage. They didn't investigate. Is there a hard surface in the garage?
MR. JACKSON: Is there a ridge-like surface in the garage? And these photos are introduced on that issue — to say that there was evidence in the house. If the police only went in there, they would have seen that, and that may have sent them in a different direction. So, it's relevant for that purpose.
JUDGE CANNONE: Do you want to weigh in on this?
MR. BRENNAN: These are not only irrelevant — they are not material — it's misleading. They're not seeking to have measurements from the flagpole to the door. They're trying to seek measurements from the driveway to the door. There is no evidence whatsoever John O'Keefe was ever on, near, or anywhere by the driveway. The evidence is that he was at the flagpole. While the data showed there was a turn westward, it didn't show the direction in question. It did not. There was a measurement from the flagpole to the garage door. That is something that I think would be appropriate. From the driveway, totally irrelevant. There's no evidence, no witness, no substantive evidence in this case that John O'Keefe went in the house, went near the house, was dropped off.
MR. BRENNAN: They're relying simply on the fact that there were 37 steps. They have no idea what direction or where. What they want to do — to argue this — is to show inside the garage and then posit the theory that somehow John O'Keefe was killed in the garage, it was colder than it was in the regular house, and that would account for the temperature on the battery. They have no evidence to support that. You can't use that as a panacea. You can't just say [unintelligible] — they should have done what we want them to do. It is about what is reasonable. The police went into the house. They spoke to the occupants of the house. There was no evidence that Mr. O'Keefe went into the garage. You might as well take a photograph of anybody else's garage in America and put it up in front of the jury.
MR. BRENNAN: So, this is going to create a mistaken, baseless argument that this evidence somehow shows that Mr. O'Keefe was, A, in the garage and, B, he was injured in the garage. That's why they want to show it. Couldn't some of these angles have caused the injury? Total speculation, no relevance at all — and it is just an opportunity to mislead this jury. This should not come in.
MR. JACKSON: If I may respond in four ways — First of all, Mr. Brennan just informed this court that there was no evidence of movement of the phone. I'd like to quote his own witness. At 12 — at 12:25:30 — the device bearing shifts to a westerly direction, as location records also show the device moving west from the roadside toward the house. So that was false. Secondly, with regard to "oh, we should be measuring from the flagpole" — our theory is not that he entered the house from the area of the flagpole. Our theory is that he was placed at that flagpole, and as Mr. Brennan correctly points out, there's no evidence that they introduced as to where he was on the road prior to walking into the house in that westerly direction. Our theory is as good as his.
MR. JACKSON: He did not prove anything to contradict our theory. The third thing is that Ryan Nagel and Heather Maxon saw Karen Read in her vehicle alone. The passenger seat was illuminated and empty. John was nowhere in the area of that vehicle. He was not in that vehicle. There's only one other place that he could be, and that is in the house. So finally, the fourth point, Your Honor — this court has continually — as the court should — done a 403 analysis. The probative value — we have established it through their own witnesses. They called all these witnesses and they established the foundation for the admission of these photos. There is no unfair prejudice.
MR. JACKSON: I would argue that anytime there's exculpatory evidence, or a case that advances the defense theory, that's by definition going to prejudice the Commonwealth's case — this is not unfair. He is allowed — Mr. Brennan is allowed — to cross-examine this witness and to make whatever arguments he wants to make about the likelihood of the garage being involved or not. But he does not and should not get the benefit of the fact that his investigation — the police investigation — didn't do what we just did. And this evidence should come in — the argument against it is purely rhetorical.
MR. BRENNAN: There's not one fact. The witnesses that saw the car saw it in front of them. Nobody ever got out. A light on doesn't mean that he wasn't near the car, because they didn't see him in the front seat. So there is no evidence that Mr. O'Keefe went anywhere near the house, the breezeway, or the door. It is speculative. It is baseless. They want to take that baseless argument and then bootstrap Dr. Loisada to further speculate that something in the garage could have caused the injury. That is not potent. That is not a due process right. That's not a 403. It's empty. It has no factual basis whatsoever.
PARENTHETICAL: [gap in recording — jury entering, approximately 6 minutes]
JUDGE CANNONE: Okay. So, the only thing — just to the location data —
MR. JACKSON: [unintelligible] — again, Mr. Brennan's argument — [unintelligible].
JUDGE CANNONE: All right. So, I'm going to allow you to do the measurements. These photos will be marked for identification. The photos are not admissible. So, all right, Chrissy, can you just mark those, please? All right, let's bring the jury over. Mr. Jackson, how long will you be with Dr. Wolfe?
MR. JACKSON: Probably 20 minutes.
JUDGE CANNONE: All right. And depending —
MR. JACKSON: Yes.
JUDGE CANNONE: — on that. All right. So during the morning recess, we'll do the voir dire of Dr. Loisada. All right. Bring them on over, please. [unintelligible]