Commonwealth v. Read — Trial ArchiveProcedural - Motions
189 linesCOURT OFFICER: You are unmuted. It's now open.
JUDGE CANNONE: You may be seated.
COURT CLERK: Good morning, your honor. May I call the case, please? For the record, before the court is Commonwealth versus Karen Read, 22 CR117. The parties are present. The jury is not present. The matter is on for trial. If the parties could please identify themselves for the record.
JUDGE CANNONE: Good morning, Miss McLaughlin.
MS. MCLAUGHLIN: Good morning, your honor.
JUDGE CANNONE: Good morning, Mr. Lally.
MR. LALLY: Good morning, your honor.
JUDGE CANNONE: Good morning, Mr. Brennan.
MR. BRENNAN: Morning, your honor.
MR. ALESSI: Robert Alessi from Miss Read.
JUDGE CANNONE: Good morning, Mr. Alessi. Good morning, David. Good morning, Mr. Yannetti. And good morning, Miss Read. All right. So, Mr. Yannetti and Mr. Leie, you're standing in also for Mr. Jackson and Miss Little.
JUDGE CANNONE: All right. So, first thing — we left off yesterday was whether KKK for identification, the PowerPoint of Dr. Rentschler, would be entered into evidence. It will not be, based on the objection. So it is excluded from evidence. So it's marked still for identification and your rights are saved on that. So, are we ready to go forward with the charge conference?
MR. YANNETTI: Uh, yes, your honor. I guess I have a question first as to whether the court would like to entertain the argument on the motion for required finding.
JUDGE CANNONE: So, no, we can do that now.
MR. YANNETTI: Sure. And this is not lengthy, judge. Five or ten minutes.
JUDGE CANNONE: Take your time.
MR. YANNETTI: Thank you. We are renewing our motion for required finding of not guilty at the close of all the evidence. And in so doing, your honor, we're incorporating our oral argument in support of this motion that we made at the close of the Commonwealth case. At that juncture, your honor, the Commonwealth had produced no witnesses to testify that John O'Keefe's injuries were consistent with his having been hit by a motor vehicle. And if he was not hit by a motor vehicle, none of these three indictments may stand. The Commonwealth, we believe, at that time fell woefully short of proving their case. Now that the defense has put on a case, the Commonwealth's case has been further weakened such that none of these charges can stand.
MR. YANNETTI: Nearly every witness, your honor, we have called, we would submit, has destroyed the Commonwealth's theory of the case. Dr. Russell testified for the defense. She's a leading expert on dog bite wound pattern recognition in the country, and she testified about medical injury causation and provided the jury with her expert opinion that John O'Keefe's injuries were consistent with dog-inflicted wounds — both bites and scratches. I would remind the court at this juncture that there was a dog at the very residence where John O'Keefe was found. A dog which was a longtime member of the family which the family gave away after John O'Keefe's death.
MR. YANNETTI: A dog which mysteriously was absent from the home at 6:30 in the morning on January 29th when Jennifer McCabe claimed that she burst into Brian Albert's bedroom where the dog always slept. A dog which was absent from the home when the Canton police entered the home later that morning. Importantly, Dr. Russell agreed with the Commonwealth's medical examiner, Dr. Scordi-Bello, that John O'Keefe suffered no injuries that were consistent with having been in a motor vehicle collision. And again, if there's no collision, there's no case. Dr. Lopeado, one of the most experienced and accomplished forensic pathologists you could find anywhere, agreed with Dr. Russell that John O'Keefe's injuries were consistent with an animal attack. And she agreed with both Dr.
MR. YANNETTI: Russell and the Commonwealth's expert, Dr. Scordi-Bello, that John O'Keefe was not hit by a motor vehicle. So the question is: in what type of murder case would a judge ever allow a motion for required finding of not guilty? In a murder case where expert testimony on both sides is that the evidence is inconsistent completely with the Commonwealth's theory of the case. That's exactly what we have here. But it doesn't stop there. Both witnesses from ARCCA drove a stake through the heart of the Commonwealth's case. Dr. Wolfe concluded that the damage to Ms. Read's Lexus was inconsistent with having come from a collision with John O'Keefe. Unlike Dr. Welcher, who created, we would submit, a meaningless experiment based on no scientific method, Dr.
MR. YANNETTI: Wolfe actually did the proper force analysis and concluded that Ms. Read's Lexus was not damaged by the body or the arm of John O'Keefe. His testimony was unimpacted by cross-examination and it's devastating to the Commonwealth's case. Dr. Rentschler further cemented that there was no collision between the Lexus and John O'Keefe. It is simply not possible that this 6,000-lb SUV hit John O'Keefe at 24 miles an hour and caused only superficial wounds to his right arm with no injuries to his legs or lower body. The SUV did not hit him. John O'Keefe was not hit by the SUV. The case is over. But on top of all that scientific evidence, your honor, there were three additional fact witnesses who testified for the defense who corroborated that the Commonwealth's theory of the case is false.
MR. YANNETTI: Sergeant Nicholas Barros, a sworn police officer, testified that when he saw Miss Read's SUV that day, before it was towed to the Canton Police sallyport, the tail light was merely cracked. When he was shown photos of what it looked like in the sallyport after Michael Proctor had access to it, Sergeant Barros confirmed that it was absolutely different. Karina Kolokithas confirmed that there were no problems between Karen and John O'Keefe that night, even remarking on just how sweetly he kissed her on the forehead shortly before they left the Waterfall. But perhaps more importantly, that kiss happened right in front of Brian Higgins. The same Brian Higgins who had been flirting with Karen Read that month. The same Brian Higgins whom Karen had ghosted for several days before January 28th.
MR. YANNETTI: The same Brian Higgins who had texted Karen that very night and received no response. The same Brian Higgins whom Karen had given her back to all night. The same Brian Higgins who had to be restrained at the end of the night by Chris Albert on video. The same Brian —
JUDGE CANNONE: Brian Higgins. You just said Albert. You mean Higgins, right?
MR. YANNETTI: I meant Higgins. Yes. Yeah. The same Brian Higgins who is on video hot, angry, and gesturing to John O'Keefe to meet him outside shortly before they left the Waterfall and shortly before John O'Keefe was killed. And finally, Brian Loughran, plowing Fairview Road at 2:45 in the morning, was attentive, watching everything in front of him, very familiar with the Alberts' residence, and had every reason to protect the Albert family. You recall that he did protect the Albert family to a degree that night by choosing not to follow protocol and call the DPW or the police about the Ford Edge parked on the street outside their property during a snow emergency. Brian Loughran confirmed that John O'Keefe was not on the front lawn at the Albert residence at 2:45 a.m.
MR. YANNETTI: That means that Karen did not hit him. There was no collision. All the experts agree on that, including the Commonwealth's expert, and the only eyewitness that morning confirms it. Taking the evidence in the light most favorable to the Commonwealth at this juncture, with their evidence weakened by an airtight defense to these charges, these indictments cannot stand and we urge this court to enter required findings of not guilty on all three indictments.
JUDGE CANNONE: Right. Thank you.
MR. YANNETTI: Thank you, your honor.
MR. LALLY: Commonwealth requests that the defendant's motion for required finding of not guilty — at this juncture, as it was at the close of the Commonwealth's case — be denied. The state of the evidence is not dramatically changed since the Commonwealth rested its case in chief. Counsel makes reference to dog or canine. I would remind the court that there is absolutely no evidence — none, not even a scintilla of evidence — of a dog. There is no evidence of an absence of a dog. You have Miss McCabe testifying that she didn't see it in the morning, which does not equate to there being an absence of a dog there. The arguments from counsel of the Commonwealth would suggest grossly exaggerate the strength of the defense witnesses in their case.
MR. LALLY: The bias and advocacy exhibited by those witnesses from that witness stand do not amount to credible witness testimony that undermined the Commonwealth's case in any way, shape or form. Couple of specific examples: when it came to Officer Barros, his testimony was also that the cruiser camera footage from 8:22 in the morning at the driveway at 1 Meadows — he indicated the damage to the tail light was consistent with the damage that he observed in the driveway at the defendant's parents' home, which was then consistent from the video or the photographs within the sallyport — is also consistent with 5:07 a.m. at 1 Meadows on the still frame shots from that ring camera video. Essentially, the Commonwealth would submit that the defense witnesses all conflict with each other.
MR. LALLY: You have a couple witnesses testifying about dog or animal bites. Then you have the ARCCA witnesses testifying about superficial abrasions. You have Dr. Labasada talking about the drop in body temperature, which conflicts with Loughran's testimony as far as his confusion as far as the hours of when he sees — or claims to have driven by there and not seen a body. This is the same witness who is, I would submit, very confused on times, and then also backed into a basketball hoop during the course of his plow duties on that particular early morning as well. And as the court could see from the cruiser camera video, drove by the scene countless times, essentially rubbernecking it as he's going past doing his duties.
MR. LALLY: Your honor, what the Commonwealth would submit is that its case was more than sufficiently strong at the close of the evidence in its case and chief. There has been nothing presented in the defendant's case to diminish — particularly to the standards in the light most favorable to the Commonwealth — and request that the defendant's motion be denied.
JUDGE CANNONE: So, you know, I have to view this in the light. I do. And viewing it that way, it has met its burden. So, the motion is denied. Okay. All right. So, regarding the charge — so we'll start with the defendant's missing witness request. Who's arguing that motion?
MR. YANNETTI: We're not arguing that, and I apologize, but we made the decision last night to withdraw two of our requested instructions, which includes that.
JUDGE CANNONE: Oh, okay. So everything on this is done, right? The defendant's motion to present a missing witness argument and request for instruction — you're withdrawing that.
MR. YANNETTI: The absent witness instruction, we're withdrawing that request.
JUDGE CANNONE: Okay. And what else from your proposed instructions? You said there were two. What's the second one?
MR. YANNETTI: The second one is that there's an entry on our request for lost or destroyed evidence that —
JUDGE CANNONE: Okay. I had a question about that. All right. Thank you.
MR. YANNETTI: There is a supplemental instruction that we're asking the court to give regarding the display of this sweatshirt.
JUDGE CANNONE: Oh, that's right. You filed — I saw it on email. I don't have a hard copy of it.
MR. YANNETTI: Your honor, if it pleases your honor, I'll hand up my hard copy.
JUDGE CANNONE: Okay. If you could do that, I'd like to go back through the rest of it and come back to that after I've read it. Okay. Who's arguing for the rest of the defendant's proposed instructions? Okay. So, I think you're sort of in agreement on the basis of the law, right?
PARENTHETICAL: [counsel]
JUDGE CANNONE: : Yes. All right. So, model homicide instructions just as last time. So, that takes a lot of time out of today.
MR. LALLY: The only thing I would draw the court's attention to — does have a request for, and I understand it might be on this — but as far as the operating-related charge, was only seeking instruction on —
JUDGE CANNONE: All right. So we will deal with that. Um, I'm going to go through the defendant's instructions — sort of the general instructions first. So it's probably easier to go through those, and then we'll have the argument on that. So, presumption of innocence — I think my presumption of innocence instruction is a little more robust than what you've requested. So I will probably — okay — and I will give some version. I know that there was a lot of attention paid, and some appellate decisions on — each individual indictment. I'll give some further language on that. You've got an instruction proposed on page four — reaching a verdict. I will make it crystal clear though. I think it was, and I was upheld on it. So I will make it crystal clear. Okay. So I'll give you that.
JUDGE CANNONE: Miss Little, this — "what is evidence?" — I probably won't give verbatim what you have. I'll take a look at it, but I will certainly cover all these topics. Um, so Mr. Yannetti, you're telling me that your client wants me to give a defendant-did-not-testify instruction. Again, if you want to take a look at what I gave last year, I think it's a little more robust than this.
MR. YANNETTI: I think we were satisfied with the court's instructions on that. So, we would be satisfied again.
JUDGE CANNONE: Okay. Uh, humane practice — I will give you Bowden. Um, I'm going to take a look, size this up with what I gave last year. I gave Bowden last year. I gave a Bowden instruction. I don't think the Commonwealth objects, right?
MR. LALLY: We would object to the instructions.
JUDGE CANNONE: Okay. Go ahead. Do you want to make an argument?
MR. LALLY: Just briefly — when it comes to the Bowden, and I would incorporate — and I know there's no request for instruction, but would be making similar request that counsel be heard on Bowden —
JUDGE CANNONE: I'm sorry. You don't think the defense should be allowed to make a Bowden argument, to argue Bowden?
MR. LALLY: So I would submit, your honor, that the entirety of any testimony or evidence related to either third party culprit in this trial has come from questions from defense — from actual evidence in the case, testimony, witnesses from the stand put into evidence, or anything of the like. So the instruction arguments are based or predicated on evidence — and the court is obviously well aware the instruction that no matter how powerful they are, questions from counsel are not evidence. So what I would submit is that the court looks at what is actually in evidence in this case. There is no basis whatsoever for not only a third party culprit instruction — but specifically for counsel to make that argument during the course of — I understand it's a little bit more loose as far as
JUDGE CANNONE: So I'm going to ask Mr. Yannetti to explain to me. All right. So, I disagree with you on Bowden, but I'll take a closer look at it. Mr. Yannetti, what is the Bowden evidence that warrants an instruction?
MR. YANNETTI: I think it's multifaceted, your honor. The police did not secure the crime scene properly. They used inadequate material, packed evidence. Chain of custody was contaminated and corrupted. There was evidence of bias — the lead investigator, failure to pursue the suspects, specifically telling his friends that the homeowner was sacrificed as everybody else. It was not an open-ended investigation from day one. It was focused on one person and one person only. And just to respond briefly to Mr. Lally's comments about how we didn't introduce affirmative evidence of the proper way to do an investigation: we tried, your honor. We made a motion and renewed it asking for reconsideration of the court's ruling that Mike Easter could not testify about an investigation.
MR. YANNETTI: So to say that we didn't introduce that evidence when we tried —
JUDGE CANNONE: I think what Mr. Lally was saying is that you asked questions but weren't given answers. And so I think that's what was said. I'm going to — Mr. Yannetti, I'm going to allow you to argue Bowden and I am going to give an instruction. So, third party culprit is an entirely different animal here. I know — but tell me, are you going to argue it? Is the defense going to argue that Brian Higgins did this?
MR. YANNETTI: No, we're going to argue that police failed to investigate whether Brian Higgins did it.
JUDGE CANNONE: Okay. So, just so that it's clear — that you all know — I believe third party culprit separately is a lot different than third party culprit as it goes to Bowden. I ruled pre-trial that there could be no attempt at introducing third party culprit evidence regarding Colin Albert. Correct. So, that was separate. But I did say that I would give you the opportunity to try and develop testimony regarding Brian Higgins and Brian Albert as third party culprits. That threshold that you need to meet to do that — to argue them as third party culprits — has not been made by the defense. So, you cannot argue that either Brian Higgins or Brian Albert committed it, or had the motive, and all of that. Not third party culprit. Pure third party culprit. You understand that?
JUDGE CANNONE: It sounds like you're telling me you don't intend to do that.
MR. YANNETTI: We understand the distinction you're drawing, and we're strictly going with Bowden.
JUDGE CANNONE: Okay. So, you can get into third party culprit with Brian Higgins — that the police were aware of whatever you're going to argue and failed to act on it. But it's strictly for that purpose. Okay.
MR. YANNETTI: And I thought that was just for clarification.
JUDGE CANNONE: Yeah. So, Mr. Yannetti — and of course I take him at his word — tells me that they're not going to do pure third party culprit. Okay. That's great. That makes that easier. So I will give — sure. Go ahead. While we're on — yeah, I have a check mark next to that. Um, Miss Little, tell me about this — the absence of re-recording. Are you saying that the police should have recorded Ms. Read at her parents' house?
MS. LITTLE: Right. So, you know, obviously it's not the strongest [unintelligible] argument that we would have did not occur at a police station, but you know, these days, your honor, it's common knowledge that everybody has access to a recorder, even on their own cell phone. It could have been done. It wasn't done. We had to rely on police memory of what my client said or didn't say when there was a possibility for a recording. So we still think we're entitled to — do you think it was custodial interrogation? Um — or I guess I should say, do you think the evidence supports — I think there's an argument that it was custodial interrogation. We had police officers who, you know, refused to sit down in the living room.
MS. LITTLE: They were trying to — someone who was not familiar with dealing with the police at all. So yes, I think there's an argument that it could be considered.
JUDGE CANNONE: All right. What do you say about all this, Mr. Lally?
MS. LITTLE: I would also add it [unintelligible] around the same time. So you know, that it goes to custody and my client being able to deny — right?
MR. LALLY: What do you say? That's the very nature of the objection — the non-custodial nature of this. So the troopers spoke to her at her parents' house, as they did with a number of different witnesses on that day, as well — that they spoke to her while she was seated on the couch. Her parents' home/room was restricted from — and it did not end in any sort of custodial situation based on the information that they felt over the course of the day and from statements from her. But I don't think that that transforms that conversation or the interview.
MR. LALLY: The bigger issue I have — as far as there's already been a request for jury instructions on humane practice, and then following the [unintelligible] language and the defendant's request for jury instructions, that goes on to all of this other language regarding compromised mental state and all these other things that, while if it were to be given by the court, should be given in the same context of humane practice. I don't think it's something that should be highlighted in two different sections. I would say that there is no evidence of perhaps a mental state or anything to that effect. She exercised her judgment as far as when she was speaking with the Sergeant — that initially she said she's fine with answering questions but didn't want to get into any details.
MR. LALLY: When the question became centered more on detail, at that point — and I know that's not the jury, but she was aware — she then ended the questioning at that point. So I don't think there's any evidence of her having a compromised [unintelligible]. So I would ask basically that everything on that page prior to that instruction be removed.
JUDGE CANNONE: All right. I'll take another look at this and I'll just let you know in the morning.
MS. LITTLE: And your honor, with regard to the compromised mental state — we agree that that would not apply to the interview at your residence. But we believe that it applies within the humane practice. That is where it makes sense.
JUDGE CANNONE: All right. Yeah, I think that's fair. Okay. Okay. All right. Prior statement. I will give some instruction on prior inconsistent and I'll give a prior consistent statement. I will talk about the view. The absent witness instruction is withdrawn. So is the — not interrupt. That's okay. That's okay. Let's go back to the view, your —
PARENTHETICAL: [unidentified speaker]
JUDGE CANNONE: : Sure. Okay. Oh, what do you mean by that? I think that was taken into account perhaps.
MS. LITTLE: — honor. We did include a way of reinforcing the fact that the drops that they saw on the view was not present on January 29th. We asked to repeat that one sentence.
JUDGE CANNONE: Okay. So I did not see this when I took a quick look at the view. All right. I'm not going to repeat it. All right. Lost or destroyed evidence — you're withdrawing direct and indirect evidence. I'm going to try and give a short — shorter instruction on that. So I will — I'm even — my — the one I gave is too long. I'm trying to cut down the time the jury needs to hear general instructions that I think they're perfectly capable of hearing in a shorter period of time. All right. Thank you. Credibility — the same law enforcement witness. I think I gave some instruction on that. I'll include that somewhere in it.
JUDGE CANNONE: We're not — Yeah, I'll do police officer because they're police testimony. I'm not going to go beyond that. Okay. Thank you. I'll do the photographs, the opinion testimony, notes. I'm not saying I'm giving exactly this, but I will give — I'll cover all those topics. I — What page you on? Okay. One suggestion there was photographs and evidence. I would — Yeah, I'm just going to say there are photographs that are in evidence. Was that the nature of your objection? I — I actually think that introduced more graphic — Yeah. So I — I would just say you've seen photographs or there were photographs in evidence. I — I instructed twice anyway, maybe three times on it. So I'll give some version of that. Juror notes, I'll give some version.
JUDGE CANNONE: The implicit bias instruction, I'm going to give exactly what the SJC told me I should give. All right. So the Commonwealth requests are sort of in — you start with the law and then you get into the general instructions, Mr. Lally. So let's skip to your not numbered — your supplemental instructions, use of a dangerous weapon.
PARENTHETICAL: [unidentified speaker]
JUDGE CANNONE: : Yeah, we're — we're joining in the — I don't know that we included that in our instruction, but we're joining in the comment. All right. Okay. Expert witnesses, electronic communication. So I'm going to go through the limiting instructions I gave. I need to just do this again here. So, electronic communications, I have that on my list. The emotional impact photos, humane practice. We'll get back to consciousness of guilt in a minute. I'm also going to give the prior bad acts instruction. I did that in regard to the Aruba incident, if you want to call it that. I gave a prior bad acts instruction before that testimony came in.
MR. LALLY: Yes.
JUDGE CANNONE: All right. So I'm going to give that instruction. I gave a dangerous weapon instruction last year on the motor vehicle. All right. So I'll give probably what I gave last year and this looks like it is. What is not evidence? Evaluating the — I'm going to give what is not evidence. Evaluating the evidence, there's some instruction. Miss [unintelligible], what do you think about the short instruction on jurors? Sort of makes sense to me after such a long trial. "No juror is better qualified to determine the truth of the facts and controversy or to deliberate upon a verdict than any other juror — or solely because of that — not or solely because of that juror's occupation, education, experience, or any other characteristic." Okay, thank you. Charts and summaries.
JUDGE CANNONE: I'll talk a little bit about charts and inferences. I will give some — I'll give the redacted exhibits instruction. Witness preparation for trial. Do you both want this? There was testimony on both sides. It's simply — there was testimony at trial that the attorneys — and I may say if you find, or something, preface it — witnesses when the attorneys interviewed witnesses when preparing for and during the course of the trial. "No — you may not draw any unfavorable inferences solely from that fact. There is nothing improper about conducting such interviews. On the contrary, the attorneys are obligated to prepare their case as thoroughly as possible and may interview witnesses." I don't know if there's a sequestration order if this is appropriate though where it says during trial.
JUDGE CANNONE: During the course of the trial — I'll just say when preparing for trial.
JUDGE CANNONE: And I also gave the instruction that I will also give on the state of mind of John O'Keefe as to his state of mind being known by the defendant and the likelihood that she would act on it. So Commonwealth versus Bins? in those cases. That there was any — I thought it came in through Kay?. It — I should say it did come in through Kay?. That's when I gave the prior bad acts instruction. She testified. Okay. All right. So did I give it any other time — is there another event that I should highlight? I don't — I don't think so. All right. I think I have to add that here. So all right. And I will look at it and decide whether I need to add it specifically. It might be covered enough when I give the electronic communications instruction. So I will think about that. All right.
JUDGE CANNONE: Those were the limiting instructions I wanted to get to.
ATTY.: So we would object to the about — — link to the text message. All right, I'm going to take a look at that, Mr. Lally. All right. Consciousness of guilt. Okay. All right. All right. So tell me where the difference is and what I gave last year from the model homicide instruction on second-degree murder and where you're saying I should not this year, Mr. Lally.
MR. LALLY: So the only one — second, let me just pull that up. Okay. Your follow request merely — not for any change or operation — and the instructions have been given other than there are three types of malice and essentially is requesting speak up merely on third prong — that's the only one that really applies. Okay, here the first two are essentially in the situation. And you know —
JUDGE CANNONE: Do you have support of case law for me to single this out? What do you say, Mr. Yannetti?
MR. YANNETTI: I mean, Mr. Brennan essentially stated that in his opening statement.
JUDGE CANNONE: Stated what?
MR. YANNETTI: Well, in his opening statement, he stated that he's not alleging that she intended to grieve — not intend to kill him. And it was just the third prong. He stated that in his opening. I imagine that's what he likely argued in his closing. I — I don't have a position on this. I just don't know and I think the court's going through this analysis as well whether it's principal or not, just
JUDGE CANNONE: Raised that — I don't have — I could say the parties agree that the first prong and the second prong are not applicable here. I think we're just at a position — well, I'm not going to say agree if there's no agreement. If you can get me a case by this afternoon, I will endeavor to do so. I don't have — I'm inclined to go with the model. Um, I'll see if there's something I can find. You're probably better at finding it than I am, Mr. Lally, but um I'll see if there's something I can find to support the position that it's just the third prong and therefore I only have to give that instruction. I don't think I'll find anything, but let me see. Um, 'cause I — I can understand why both of you don't want it. Just let the jury focus on what they need to focus on.
JUDGE CANNONE: That's really — I understand, and I — I suppose I could always tell the jurors that the Supreme Judicial Court has come out with jury instructions that I must give in their entire format. And that sort of explains why I say something that doesn't apply. Maybe — maybe I'll do that. But let me see if I can find something. If I can find something that says I don't have to give those first two prongs, um, I'll let you know before you begin.
MR. YANNETTI: All right. Before the court makes a decision on that, we see what the court
JUDGE CANNONE: Is proposing. If I alter it, it means I remove those two. That's all.
MR. YANNETTI: But no, we just want — yeah, sure.
JUDGE CANNONE: Sure. My guess is that won't happen. But um, we can see. All right. So, uh, lesser included offenses. Did you want an OUI instruction? You were — you're asking for that.
MR. YANNETTI: Okay. All right. Right.
JUDGE CANNONE: I think that's it, aside from Mr. Alessi's motion regarding the exhibit, right? Is there anything else that we're missing?
MR. YANNETTI: Just a couple of other issues. One is um with regard to the redacted text messages, we have a redacted version now um which we'd like to submit to the court — of Commonwealth. You recall that we had agreed essentially on a redaction subject to the court's ruling. But it wasn't in final form. We believe it's in final form now.
JUDGE CANNONE: And you all agree that it's in final form?
MR. YANNETTI: Well, they haven't seen it. I'm going to give it to them now. Can I hand this to —
JUDGE CANNONE: Sure. Thank you. All right. So, the only other issue, your honor, is — hold on one second on this issue still. So, I will give the Commonwealth this afternoon to take a look at this. Um, and tomorrow morning if you don't have agreement, then we'll have to deal with it, and I'd prefer not to have to deal with it. So, I'm sure we can be in touch this afternoon.
MR. YANNETTI: I do not believe there's going to be any problem.
JUDGE CANNONE: Okay. Um, just a couple other things before we get to Mr. Yannetti. One is that we do have the, uh, [exhibit] introduced. Dr. Wolfe or Dr. Rentschler?
MR. YANNETTI: Dr. Wolfe.
JUDGE CANNONE: All right. And this was allowed into evidence unobjected to.
MR. YANNETTI: I thought we already had it.
JUDGE CANNONE: We didn't. We have the redacted version. Okay. And the Commonwealth has seen it. All right. So they'll have to see it. Um, so Mr. Lally, Mr. Brennan, Ms. McLaughlin, one of you has to take a look at it.
MR. YANNETTI: And then um, will the court allow more than an hour?
JUDGE CANNONE: I'll allow more than an hour. I'll allow an hour and 15 minutes.
MR. YANNETTI: Thank you. All right. And I — I think I did mention that we had a verdict form.
JUDGE CANNONE: You did not.
MR. YANNETTI: Okay. We do have one. Can I hand —
JUDGE CANNONE: Sure. Is it the same as last year's but now with a —
MR. YANNETTI: It's different.
JUDGE CANNONE: Okay. All right. You have a chance to digest it?
MR. YANNETTI: Oh, I — I digested it.
JUDGE CANNONE: Mr. Alessi, go ahead. I'll hear you.
MR. YANNETTI: I'm actually Yannetti. Geez.
JUDGE CANNONE: I'm sorry. Um, so your honor —
MR. YANNETTI: Um, so your honor, you'll recall uh we uh we had uh some spirited argument both before and after the trial regarding this particular issue. And our concern, your honor, was that uh it's — it's obviously a confusing indictment because of the number of lesser included and the number of elements that are different for each lesser included. And we were uncomfortable with, you know, there being one option for not guilty at the top of the form and then multiple options for multiple different types of guilty verdict throughout the remainder of the form. So what we have done is to fashion this in a way where the jury, uh, pursuant to the court's instructions, would first decide the offense that's charged, uh, and if it's a guilty verdict then — um — you know, the analysis is over.
MR. YANNETTI: If it's a not guilty verdict, they go on to the next lesser included offense, and again the same analysis applies. Uh, if it's not guilty, they then go to the next until they finally reach the final verdict, which — the least — I should say the least of the lesser included offenses — is simple operating under the influence, where they have an option for not guilty or guilty. Um, we've also changed a little bit of the wording — uh, you'll see — which I think makes it clearer and less confusing. Um, when the jury is given options for theories of guilt on at least, like, three — one, two, three of the charges, including the main charge. Uh, because there's this issue of either under the influence or .08 or greater.
MR. YANNETTI: Um, it — it — the way it originally read, your honor, uh, manslaughter while operating a motor vehicle under the influence of alcohol was repeated twice. It was repeated once where there's an option for guilty, and then it was repeated again with both of the other options. We think that this is simpler. It's cleaner. It's — it's clearer. Uh, and we believe that uh this verdict is the most appropriate one.
MR. LALLY: Your honor, as the court's probably well aware, the Commonwealth is not requesting any lesser included, and I certainly understand that the defense request — having said that, um, the verdict slip was used in this matter last year and adapted from that. The only other thing I would bring to the court's attention — I don't know if you're aware — there was um a case recently while this case was going on, tried before another judge for a time, um, in which he had similar issues — had, I believe, use at least part of the slip from the first trial in this case as sort of a template for the lesser included instruction. I — I don't have a copy of it on me, but I can certainly get a copy, but that may be somewhat helpful, of course.
JUDGE CANNONE: Okay. Was that our murder case?
MR. LALLY: It was not, but it had to do with the felony.
JUDGE CANNONE: Okay. Yeah. I'll take a look at it, Mr. Turk?. Um, Mr. Turk? — Mr. — Mr. Yannetti, um, I don't believe I'm going to give this, but I'll take a closer look at it.
MR. YANNETTI: Well, we appreciate that, as well as an excellent judgment. Uh, we think that this verdict is what is uh, it provides the most clarity to the jury. That's why —
JUDGE CANNONE: Okay, and that's where I think we disagree. So I will take a closer look at that, and um, so has it been filed officially and docketed?
MR. YANNETTI: I just handed it, I believe.
JUDGE CANNONE: All right. So, Madam Clerk, you have a copy up there.
MR. YANNETTI: The proposed — I think this is the only copy.
JUDGE CANNONE: Okay. That's what I was wondering. Okay. Sure. Yes. Or, you know what? Just mark it for identification. Margaret, we'll do that. Chrissy, please. Just for ID. It's — LL for ID. Thank you.
MR. LALLY: Lally, just uh one request, circling back to the consciousness of guilt instruction. So, withdrawing the request for the instruction. Okay. However, I would be seeking to make the argument to the jury regarding — the two areas are: the defendant's taking the Lexus from her home to her parents' residence incident, and then certain statements made in reference to various statements.
JUDGE CANNONE: Okay. Okay. All right. Yannetti, do you want to weigh in on that?
MR. YANNETTI: Yeah, I'll speak to that. Um, I don't see consciousness of guilt, or it being evident, and the notion that she's driving from one residence that the police know of to another residence that the police know of, which is her parents' house. The car is open and obvious in the driveway. In fact, when the police call, she says, "Yes, come on over." I don't see that as being any evidence.
JUDGE CANNONE: Okay. So, uh, I'm going to allow them because they're permissible inferences from what's in evidence, but I'm not going to give — even before it was withdrawn, I wasn't going to give a consciousness of guilt on those. And just to be fair, clear, there may be other. Yes. So, I did want to ask you though, Mr. Yannetti, I think it's an argument that can certainly be made by the Commonwealth regarding the um video clips that your client gave during various interviews. I think consciousness of guilt is a — um — a permissible inference from some of those. Are you sure you don't want me to give the consciousness of guilt because it's got helpful language for a defendant in it as well?
MR. YANNETTI: Okay. Okay.
JUDGE CANNONE: I just wanted to give you the opportunity. Okay. All right. Anything else? Anything else, Mr. Yannetti?
MR. YANNETTI: We'll hear from Mr. Lally, but he does not object to the redaction.
JUDGE CANNONE: That's great. Thank you. One less thing you all have to do today. Okay. This is Mr. — I know. Um, all right. So, let's make that — are we switching that um new redacted version with an exhibit number? Do we know what it was before? Excuse me. Um, the redactions on the Higgins messages — that's what you're saying you're fine with, right?
MR. YANNETTI: Uh, Proctor Communications.
JUDGE CANNONE: Proctor Communications. Okay. This is the testimony that came in of Proctor.
MR. YANNETTI: I was — yes.
JUDGE CANNONE: All right. So, we'll find the exhibit number and we'll just — 209. Is everybody in agreement that it's exhibit 209?
MR. YANNETTI: Yes.
JUDGE CANNONE: Okay. Does the court have a copy or do they need to come? Uh, no. I — oh, I wrote on it. I need the original. This is a clean copy. So, that will now be 209 in evidence. You know what? Can we make that 209A? We need — Misty?, we need to keep record of the first one that was not redacted. So, any objection to making this 209A?
MR. YANNETTI: I have no objection.
JUDGE CANNONE: And and — and so original 209 will not be sent in. Is that — it becomes — what do you think?
MR. YANNETTI: Yeah.
JUDGE CANNONE: So we'll switch it back to ID, and this will just be 29. Did we have an ID number on it originally?
UNKNOWN: NN. Can it still be that? Is it NN or— No, it didn't say that. Okay. Oh, it's just NN. It's not— Did it complete? No, it became 209. [unintelligible] — it needs to be sent back to letters for— Yeah. So it'll be marked MM for ID. That's great. Okay. And then the redacted version will now— and we'll hear from you this afternoon. Just somebody send us an email to the clerk's office. So, um, someone send an email to the clerk's office today letting us know if the Wolfe PowerPoint is ready to be put into evidence after the Commonwealth looks at it. Okay. So, we'll take care of that. All right, Mr. , I'll hear you.
JUDGE CANNONE: Uh, if I might suggest a respectful procedure to the court — I have spoken with the Commonwealth about what the topic is. It's obviously not new to anyone, but perhaps to expedite this matter. If I might suggest to your honor, to avoid a more lengthy argument — it might even truncate it down to 30 seconds — if we could hear from the Commonwealth on what we have requested. And the topic specifically is entitled "defendant's motion for curative instruction regarding Exhibit 88 and introduction into evidence of exhibits." The exhibits issue is taken care of — that's no longer an issue. But I did speak with Mr. Lally, and if I could suggest that Mr. Lally, while he can state his position as I understand it, and then I can go from there, and it may not be necessary for me to continue on.
JUDGE CANNONE: Right. What's the Commonwealth's position?
MR. LALLY: The Commonwealth's position is ultimately for the court, as far as whether or not it's an appropriate instruction to give in the final charge. What we would submit is that the contemporaneous instruction was more than sufficient to address the issue, and that it doesn't require any sort of differing language for further instruction.
JUDGE CANNONE: Okay. All right. I'll hear you.
ATTY.: May I go to the podium? Yes.
JUDGE CANNONE: Thank you. Your honor, I have given — and your honor has provided me previously with a generous opportunity to be heard on this — but I do need to cover some points with regard to the matter. I was hoping to avoid doing this, but given what we just heard, it needs to be done respectfully. As your honor knows, we have submitted this motion, and as part of the motion, it really consists of two parts. The first part is the text and the basis for what we're requesting. I'll come to that in a moment. And then attached to it are — that is exhibit A and exhibit B. And those exhibits are our best effort at transcribing, because there's not an official transcript at this point of exactly what happened.
JUDGE CANNONE: Why do we put in the exhibits? We put in the exhibits because we believe it really sets forth and illuminates, quite vividly, what occurred. It occurred rather rapidly, but these exhibits allow for a much more reflective analysis. So, just briefly, what as we know happened is: ADA Brennan took Exhibit 88, encased in whatever the plexiglass material, had it set up — and we understand this now in retrospect — behind the witness stand. And then at a certain time in the cross-examination of our witness, Dr. Wolfe, confronted Dr. Wolfe with it as part of an accident reconstructionist cross-examination, and challenging Dr. Wolfe on several aspects. And this one was particularly apt — the subject matter, not the manner of the examination, was: "Dr.
JUDGE CANNONE: Wolfe, you're saying this, these are your theories. However, did you consider and take into account the holes in the back of the hoodie?" And that led to a series of questions and a series of answers. And I want to go right to the end, because I think going right to the end better elucidates what actually occurred, and the depth of the issue — the problem here — this misconduct, which we believe was intentional. Specifically, the end is: we know, and I believe it is completely undisputed, that the holes — each and every hole in the back of the hoodie — was caused by the criminalist, a witness in this case, Miss Hartnett, who made those cuts as part of her analysis. And that was in May of 2023, long after the alleged incident of January 29, 2022. So that's sort of the end — undisputed.
JUDGE CANNONE: Now, let's go back to what happened in the examination — the cross-examination of Dr. Wolfe. So he's confronted. And I think — you know, we put in exhibit A and B of it — but what is particularly striking is on page seven of exhibit A, and it's the colloquy that starts in the middle, which we've yellow-highlighted. ADA Brennan saying: "When you were making that opinion about consistent or inconsistent, did you ever consider whether there were holes in Mr. O'Keefe's sweatshirt other than the right arm?" Dr. Wolfe started to answer, "Well, I know that there was cutting to—" and I emphasize "cutting." And then he was cut off by ADA Brennan. And ADA Brennan said, "May I approach and receive the exhibit, your honor?"
JUDGE CANNONE: And we note that in the context of many other statements in this regard as to what happened. So now this comes to the requested relief, and I'm going to move to the part of the argument, your honor, that we believe respectfully compels what we're requesting. So now I want to just state what we request. We believe what we've requested is quite modest given what happened, and our proposed curative instruction is on page two of our motion. It states: "During the cross-examination of Dr. Wolfe, Mr. Brennan asked Dr. Wolfe about holes in the back of the sweatshirt, Exhibit 88, falsely insinuating that those holes were sustained on January 29, 2022 from a fall backwards. I instruct you that those holes were not present on January 29, 2022.
JUDGE CANNONE: Those holes were made by Maureen Hartnett, a criminalist at the Massachusetts State Police" — I've got the acronym MSP Crime Lab — "in the course of her inspection and sampling of the clothing on May 18, 2023. Dr. Wolfe correctly testified that those holes did not come from any alleged event on or about January 29, 2022." Please juxtapose that with regard to the instruction your honor had given, which was a sentence: "So, jurors, I instruct you that those holes were made by the criminalist, Miss Hartnett, during the course of her inspection and sampling of the sweatshirt." Didn't I include the date you requested, the May 18th date? I thought I did.
JUDGE CANNONE: But because I'm doing it from memory and I— I don't— This is not an official transcript, right? Exactly, your honor. So I can't say it with certainty. I don't believe it was. Okay. Because that date you told me was important to you, right? Among other factors, the date was important. It's May 18th, right? Uh, yes, your honor. Okay. And so, your honor, I believe what is fair in the analysis — and as objective as I can be here — is: I think the curative instruction has to tether to, and relate to in its details, the degree of what happened. This was on a very significant topic: accident reconstruction. A significant piece of evidence: the hoodie.
JUDGE CANNONE: There's been much discussion among many expert witnesses about this hoodie, what it stands for. There's been videos on it. You know, our position — the hoodie in a proper accident reconstruction would be completely unaffected by any alleged motor vehicle incident. And then to show the witness on this for the defense, it clearly left the impression to any objective observer that Dr. Wolfe had somehow been incompetent, which is 180 degrees of the reality, but also that he just wasn't otherwise diligent, and the jury therefore should not weigh and value his opinion. This is very, very significant. And I underscore, your honor, we didn't cause this problem. We didn't cause any of this issue. So to me, I do not understand why the Commonwealth would not support this.
JUDGE CANNONE: What we have written down here supports the truth. We all, I believe, should have the common goal of the jury receiving the truth. I looked at the jury — I'm no soothsayer or mind reader, but I looked at the jury and they looked confused when I looked over at them. But I think even aside from looking at a jury, what your honor did in good faith, I don't believe is clear enough on this key issue. And I'm not understanding why there would be any real contest over making it clear to the jury on this very important point. The defense — to my point of being measured at the time and being measured now — we could be requesting a lot more statements about what occurred, and I've been in situations in other trials where things have happened and there's been many more significant things stated.
JUDGE CANNONE: So in conclusion, your honor: the defense not having contributed at all to this issue, the significance of the issue, the significance of the error — it's undisputed about the error — to me, respectfully, all augurs for more clarity here. And the final point: there's two issues here. There's the fact of when these holes occurred, these cuts, and how they occurred. That's one bucket. But the second bucket, which is not in the current instruction, is our expert witness Dr. Wolfe and the impression left upon him — and that is why we have the language in there. Again, we believe quite measured — just the sentence at the end — to take care of the harm to our witness with regard to what occurred. So therefore, your honor, we respectfully
MR. ALESSI: Request that this be given so that the jury has a clear and complete and truthful understanding of not only what happened, but also to make sure that what's created for the jury is accuracy. Hence truth can be concluded. Thank you, your honor.
JUDGE CANNONE: Okay. Thank you. I do just want to point out one thing. It was not objected to at the time it came in. That's my only comment. I will consider this. I'm going to hear from Mr. Lally. I will consider this.
MR. ALESSI: What is it that was not objected?
JUDGE CANNONE: The testimony was not objected to. I didn't hear this until I think after another witness.
MR. ALESSI: Your honor, if I could — thank you for raising that. Ten seconds for that. And I made this point the very time that I made the argument last time. We were not shown — we were not shown that Exhibit 88 in the encasement. It was behind the witness. We didn't even know that it was behind the witness. So what happened was attorney Brennan went up, retrieved it, immediately went to the witness with it, showed it. We couldn't even see what was happening. There was no physical nor other ability for us to object at the time. So I appreciate you giving me the opportunity to respond to that.
JUDGE CANNONE: All right, Mr. Lally. Keep your voice up, please.
MR. LALLY: Yes. Very briefly, I'm not going to belabor the point as far as the back and forth conduct of counsel during the heat of trial. During the heat of an extended exchange with a witness on the stand, things can happen. It was basically recognized, acknowledged, and accepted as a mistake. There were numerous offers by the Commonwealth to offer a stipulation as to the truth as far as the evidence is concerned that were rejected by the defense. They wanted the curative instruction. They got it contemporaneous with when the evidence came in. There have been many, many instances of similar type conduct that didn't result in a curative instruction, and to accentuate it further in the final charge to the jury is simply improper.
MR. LALLY: It was a situation that arose — as far as whatever misstatement was made at the time, as far as whether it's from the testimony from the witness or the question from counsel — was immediately remedied, was taken care of. I don't think that there's any confusion by the jury. And furthermore, as I indicated, the Commonwealth offered a stipulation at the time that this occurred, which was essentially rejected by the defense. They got the curative instruction at the time. That is all that is required, is more than sufficient, and it doesn't need to be accentuated or addressed further in the final charge.
JUDGE CANNONE: Okay. So I'll consider it, Mr. Alessi. Okay. Thank you. All right. Anything else? Two things I'd like to talk about for scheduling. The jurors get here early. I'm going to ask the court officers to call the jurors and ask them two things — to ask them if they can get here a little bit earlier so that we can all be in the courtroom at 8:45 ready to start. Things take a little while generally. That will assure us that closing arguments will start right at 9:00, maybe a few minutes earlier. The goal would be to hear arguments from both counsel and then take an early lunch break. I would ask that counsel plan on just a half an hour lunch break. The point being, I want the jurors to start deliberating. I don't want to end the charge and send them home for the weekend.
JUDGE CANNONE: That's not fair after they've waited so long. So a short lunch — you're free to stay in the building and court officers will help you with accommodations for that. But a short lunch, and then I'll come out and do the charge. And then at least hopefully there'll be some time for them to deliberate. I'm going to ask the court officers to call the jurors to see if they can stay as late as 5:00 or 5:30 tomorrow night. I just don't think it's fair after they've sat through so much of this trial with the various delays that we've had to not let them start deliberating.
MR. ALESSI: We have no objection to that. One request we have, judge — during the last trial, during deliberations, the court had asked us to be within five minutes of the courthouse. My office is about 10 minutes away. I'm sure we can make accommodations for that. But at some point we may have to talk about security issues. So a lot may depend on that.
JUDGE CANNONE: All right. Does the Commonwealth have any objection to that schedule?
MR. LALLY: No, your honor. Not at all.
JUDGE CANNONE: All right. So, we'll see counsel in here no later than 8:30 tomorrow morning.
MR. ALESSI: Sure.
JUDGE CANNONE: Counsel here at 8:30. All right. Thank you. All right.