Commonwealth v. Read — Trial ArchiveDeliberation - Day 2
125 linesCOURT OFFICER: Hear ye. Hear ye. Hear ye. All persons having anything to do before the Honorable Beverly Cannone, the Justice of the Superior Court, hold it indebted within and for the County of Norfolk. Draw in. Give your presence. And you shall be heard. God save the Commonwealth of Massachusetts. This court is in session. Please be seated.
JUDGE CANNONE: Good morning, counsel. Good morning, Ms. Read. Good morning, jurors. I have to ask you those same three questions. Were you all able to follow the instructions and refrain from discussing this case with anybody since we met yesterday? Everyone said yes or nodded affirmatively. Was everyone able to follow the instructions and refrain from doing any independent research or investigation into this case? Everyone said yes or nodded affirmatively. Did you see, hear, or read anything about this case since we left yesterday? No. Everyone said no. So, Mr. Foreman, with that, we're going to send you back out to deliberate. All rise for the court, please. So I've been sending a note in at 4 o'clock. So I would like counsel here at 4 o'clock. All right.
JUDGE CANNONE: So if you just plan on being here at 4 o'clock, it would make it easier in case the jurors want to go home. All right. Mr. Yannetti. It wasn't until I was here that I noticed you were not in the courtroom.
MR. YANNETTI: They held me downstairs, Your Honor.
MR. YANNETTI: I think the jury was being brought in.
JUDGE CANNONE: So okay. No one told us otherwise either.
JUDGE CANNONE: All right. Thank you.
JUDGE CANNONE: So counsel, why don't you come on up. Counsel. What I'd like to do is I'm just going to read the questions to you now. So please take your seats. So I'm going to read the questions. I'm going to have them marked. Then I will take a short recess. Let you all talk about it and then come back. Thank you. So. All right. So I received three questions from the jury. The first one is — — appeared on note cards, so I don't know what order they came in, but this is the order I got them, this is the order I'm going to read them. What is the time frame for the OUI charge? Offense zero zero two section five. OUI at twelve forty-five or OUI at five a.m. The second. Are video clips of Karen's interviews evidence? How can we consider them? And the third.
JUDGE CANNONE: Does convicting guilty on a subcharge — example offense two number five — convict the overall charge? So I will give you some time to consult. I think the first one I'll hear from you as to what the timeframe is and I don't need to hear from you now. It's pretty clear-cut what they're looking for. The second one — are video clips of Karen's interviews evidence? How can we consider them? Well, we know they are evidence and they can give them whatever weight they want. I would also be inclined to give a humane practice instruction. And tell me if you want the digital evidence instruction.
JUDGE CANNONE: It's a little awkward because it would be something like, "Before you consider any electronic communication in your deliberations, you must first find that it is more likely true than not that the person who appeared in the communication was in fact Karen Read." So think about that when I come back out. But I think it's appropriate to give a humane practice instruction. And also tell me what you think about what to say about the weight. The third question is a little bit more, I think, unclear as to exactly what they're looking for. Does convicting guilty on a subcharge have to do with the overall charge? What I'm proposing — I gave you both a verdict slip where I included the language. I know yesterday I said they have to be read hand-in-hand, the jury instructions with the verdict slip.
JUDGE CANNONE: I've incorporated the language from the jury instruction into the verdict slip. I've given each side a copy. When I come out, I'd like your input on whether you think this is appropriate. I think it's appropriate that they start at the top and work their way down. That's the only thing I did not specifically put in here. But I think it takes it step-by-step, an analysis to do it. So how much time does the defense want to be able to respond to me?
MR. JACKSON: Perhaps 15 minutes.
JUDGE CANNONE: Okay. And the Commonwealth?
MR. BRENNAN: That will suffice.
JUDGE CANNONE: Okay. So it's seven past. Why don't I come out at 25 after, give you 20 minutes.
MR. JACKSON: Thank you, Your Honor.
JUDGE CANNONE: The first question - the time of the OUI. Any suggestions?
MR. JACKSON: Your Honor. Do you want to hear from the defense first?
JUDGE CANNONE: I'll hear from whoever is ready. You're standing up so I'll hear from you first.
MR. JACKSON: Okay. On question number one. What is the time frame for the OUI charge? Offense 002, section 5. OUI at 12:45 or OUI at 5 a.m. Our suggestion would be something along the lines of: Ladies and gentlemen of the jury, you have the evidence. It's your decision. You are the fact finder. You're the fact finder.
JUDGE CANNONE: Next question.
MR. JACKSON: Thank you very much.
JUDGE CANNONE: Mr. Brennan. Or whomever from the Commonwealth.
MR. BRENNAN: My suggestion will be 12:45.
JUDGE CANNONE: And why is that?
MR. BRENNAN: The case has always been focused at that time. I don't think there's anything specific in the indictment in that regard.
JUDGE CANNONE: Do we have the indictments? If it's not in the indictment, I'm uncomfortable telling them a time.
MR. BRENNAN: I'm sorry?
JUDGE CANNONE: If it's not in the indictment, I'm uncomfortable telling them a time.
MR. BRENNAN: I agree with the court on principle. I just don't have the indictment memorized, so I don't remember. Can we pull that up?
MR. BRENNAN: I don't expect that there's any time.
JUDGE CANNONE: All right. So I'll say you have the evidence and remember you are the fact finders, or something to that effect. All right. The— Are the video clips of Karen's interviews evidence? How can we consider them? So I'll tell you what I was planning on saying, then you can add to it. Yes, the videos are evidence. Give them whatever weight you think is appropriate to give them. And then I would give the digital evidence instruction and the humane practice instruction.
MR. JACKSON: The only thing I would respectfully ask the court to include in that sentence is give them whatever weight, if any, you deem appropriate.
JUDGE CANNONE: All right. Okay. If any. Thank you. Otherwise, it's fine. You're going to do it anyway. Okay. What's the Commonwealth's position?
MR. BRENNAN: We have a different perspective on that.
JUDGE CANNONE: Okay.
MR. BRENNAN: The first part of the question, are the video clips of Karen's interviews evidence — the answer is yes.
JUDGE CANNONE: Okay.
MR. BRENNAN: How can we consider them? I think it's fair to say you should weigh the defendant's statements as you would any other piece of evidence. Since they've been introduced substantively, they are like any other piece of evidence. There's no difference and there shouldn't be any reflection of a difference in the answer. We didn't introduce any evidence in this case and say you should give it any weight, if any, at all. We didn't provide a limiting instruction in any way and these shouldn't be so limited. This is just like a photograph. It's no different than a physical piece of evidence. And so I think the answer should simply be yes. You should weigh the defendant's statements as you would any other piece of evidence.
MR. BRENNAN: I do not think the court should give humane practice or digital evidence instructions. It suggests that there's some deterioration or further analysis that is different. Those instructions were already given during the charge. In addition, those instructions are in their hands in the written jury instructions. And so to put it most simply, as I think that we should: this is a piece of evidence and you weigh it like you would any other piece of evidence, whatever they decide, rather than give them guidance to curtail it or to limit it in any fashion.
MR. JACKSON: My only suggestion, Your Honor, is that every single piece of evidence that's provided to them is in keeping with Massachusetts law and in keeping with the responsibility that they have. Every single piece of evidence is given the weight, if any, they deem appropriate. That is not a misapplication of the law. I think the Commonwealth's suggestion suggests in the answer that they should or they have to give those statements weight. And the law is they don't have to give them any weight. So I think the appropriate comment by the court is exactly as the court suggested initially, which is: you give it whatever weight, if any, you deem appropriate.
JUDGE CANNONE: All right. So what I'm going to say is yes the videos are evidence. You should weigh the defendant's statements as you would any other piece of evidence and give them whatever weight you deem appropriate. But first then I'll go and I'll read the electronic communications and the humane practice — that covers it.
MR. JACKSON: If— I don't have a principled objection to it if the court adds the word "if any."
JUDGE CANNONE: I understand.
MR. JACKSON: Because every single— I don't want them to think, for instance, the way that it's worded as the Commonwealth suggested it, they think they have to weigh it the same way they weigh other pieces of evidence. Every single piece of evidence is weighed in and of itself. It's individual to the piece of evidence that's presented. For instance, they can weigh the statements by Ms. Read. They could give it no weight. Each individual juror could decide "I'm going to discard it altogether and give it no weight" while giving another piece of evidence — like whatever that might be, the testimony of one of the ARCCA witnesses — complete weight. I think that we need to stress that the clips bear no additional weight, no additional gravity, than anything else that they've considered.
MR. JACKSON: The only way to do that is very simply: you give this the weight, if any, that you decide is appropriate. It doesn't— I think comparing it and contrasting it to other pieces of evidence in the case is unnecessary and it tends to suggest they have to give it weight.
JUDGE CANNONE: Okay. So your objections are noted. Now let's get to the third one. Does convicting guilty on a sub-charge — example, offense two, number five — convict the overall charge? What do you want to say, Mr. Jackson?
MR. JACKSON: Your Honor, I appreciate the effort that the court went to to amend the verdict slip as it relates to count two. And I think there are some excellent suggestions by the court in the verdict slip. By and large, I think question number three is answered by the amendments in the verdict slip. So we certainly could say something like does convicting guilty — the question was, quote, does convicting guilty on a sub-charge, example offense two number five, convict the overall charge? The answer is no, obviously. And perhaps we could formulate an answer that says something along the lines of no, new verdict slips have been provided that will make it more clear, or something of that nature.
MR. JACKSON: As well as a decision of guilty on the OUI charge 002 number five is an explicit acquittal on the higher charges in offense 002, which is a proper statement of — and then there are suggestions that we have.
JUDGE CANNONE: Regarding the edits that the court has made to the verdict slip. And I'm happy to go over those with you and put those on the record. Okay. Go ahead.
MR. JACKSON: With regard to going from the top to the bottom. Just under number one — number one reads not guilty of the offense charged or any lesser included offense. We would propose that the court add the language, the consistent language that it's added throughout the verdict slip. Quote: if you find the defendant not guilty of the offense charged or any lesser included offense, comma, stop and sign the verdict slip, period. That's the only place that language doesn't appear and I think it should appear.
JUDGE CANNONE: Okay.
MR. JACKSON: The second is a relatively minor issue. However, under number two sub two, the parenthetical, check one or both of the following — I think it should say, just to clarify it further, if guilty, comma, check one or both of the following.
JUDGE CANNONE: All right. I think I'm going to leave it because it appears only under the guilty. It appears only under the guilty. So go ahead, I'll hear you further.
MR. JACKSON: Going further, going under number three, toward the bottom of the page, in the parenthetical that the court suggested, which we find is excellent — if you find the defendant guilty of the lesser offense of involuntary manslaughter, we would simply add that clause. So we'd have to add it in all of them.
JUDGE CANNONE: Correct. Which makes sense. I think we had it in the first one.
MR. JACKSON: Right.
JUDGE CANNONE: Okay. And then moving to page two at the top of the page under sub four. Again — hold on one second.
MR. JACKSON: Of course.
JUDGE CANNONE: Thank you.
MR. JACKSON: Okay. We have the same suggestion. It appears that the court is not inclined to give it — if guilty, check one or both of the following. And there's a typo. It says the parenthetical says —
JUDGE CANNONE: We fixed it. Check one of —
MR. JACKSON: Okay. Yes.
JUDGE CANNONE: So we fixed. We changed "of" to "or."
MR. JACKSON: So my only suggestion to that would be to again add the if guilty, comma, check one or both of the following.
JUDGE CANNONE: Okay.
MR. JACKSON: On that page going down to the bolded parenthetical — same thing. If you find the defendant guilty of the lesser offense, a motor vehicle homicide. Okay. Moving down under sub five — we still need to say stop and sign the verdict slip.
JUDGE CANNONE: Right. After the word stop — stop and sign the verdict slip. Yup.
MR. JACKSON: And then under sub five, again the same thing we just suggested, that for consistency it say if guilty, comma, check one or both of the following. And the final edit would be in the final parenthetical, the last sentence. If you find — I think "her" should be changed to "the defendant." If you find the defendant not guilty on this offense and all other offenses, check the first box on page one. Okay. And those are the edits that we have suggested for the verdict slip.
JUDGE CANNONE: All right. Mr. Brennan.
MR. BRENNAN: I don't have any disagreement with the edits. Okay. The idea of instructing them on the nuance of selecting one guilty or not guilty — I don't think it needs to be explained. I think that the edits — yes.
JUDGE CANNONE: All right.
MR. BRENNAN: I don't have any issue with — if you state — if you — — decide on a lesser included offense that does not include the primary offense. And I'm not sure of the exact language that can be used. I don't think that's necessary, but that is — I wouldn't have an objection to it, but I think the form that you filled it out with is going to be sufficient for them to follow.
JUDGE CANNONE: What do you think about the defendant's position that — — if you were to find her guilty of operating under the influence —
MR. BRENNAN: Mr. Jackson said explicit acquittal. I don't like that language. I think if you find it, it means you have found her not guilty of each of the others. That would be fine with us. I think it's better: if you find her guilty of any lesser included offense, it would not include the higher offense.
MR. JACKSON: I think that's just confusing.
JUDGE CANNONE: So what I planned on doing was bringing them out and giving them each a copy of the amended verdict slip, explaining that it really is consistent with the primary instructions I gave them, but walking them through it. So we start from the top and then explain: if you find the defendant guilty, you're done — stop, sign the verdict slip, and let the court officer know you have a verdict, or something. I think I'll walk them through it like we do in civil cases.
MR. JACKSON: I don't have any objection to that.
MR. JACKSON: The only other thing is the digital instruction.
MR. JACKSON: We don't believe that it's necessary. I don't think that we should reemphasize that and we're not asking for it.
JUDGE CANNONE: All right. So you're waiving it?
MR. JACKSON: We're waiving it.
JUDGE CANNONE: Okay. Yes. Thank you. All right. I will do the humane practice instruction. So I need five minutes and Tori, your computer, to amend this if we can, and we'll make copies so we'll bring them in. Let them know that we'll be bringing them in shortly, Tony. All right. Thank you. All right. All right, so we can bring the jurors over. Tori, do you have those? So Tony will take those. All right. All right. So I'll take. Thank you. Tori, how many did you make?
COURT OFFICER: All rise. Court pleases.
JUDGE CANNONE: Back to session. You may be seated. All right. Jurors. We're in receipt of your question. We've been working on making sure that the answers we give you are the right ones. So it's taken us a while. So the first question. What is the time frame for the OUI charge? Offense 002 section 5. OUI at 12:45 or OUI at 5 a.m.? The answer to that question is that you folks have all the evidence. And remember, it's only you who decide the facts in this case. All right. That's the answer to that question. You are the fact finders. The second question. Are the video clips of Karen's interviews evidence? How can we consider them? Yes, the videos are evidence. You should weigh the defendant's statements in the videos as you would any other piece of evidence.
JUDGE CANNONE: And give them whatever weight you deem appropriate. But first, before you may consider any such statement, you're going to have to make a preliminary determination whether it can be considered as evidence. You may not consider any such statement in your deliberations for the truth of any such statement unless from all the evidence in the case, the Commonwealth has proven beyond a reasonable doubt that the defendant made the statement that she's alleged to have made and that she made it voluntarily, freely, and rationally. So that's the answer to that question.
JUDGE CANNONE: So, for the third question, does convicting guilty on a sub-charge, example, offense 2, number 5, convict the overall charge?
JUDGE CANNONE: So with that what I'm going to do is I have amended the verdict slip It's the exact same verdict slip and it's still consistent with the jury instructions I gave you but it's a little bit easier for you to follow and for purposes of going through this We'll go through it together and I've got a copy for each one of you. Okay?
JUDGE CANNONE: All right, so you'll see it really is the same verdict step, but we've added a little bit of language to help you follow it through. So the first charge, manslaughter while operating a motor vehicle under the influence of liquor.
JUDGE CANNONE: So first, in the above entitled case, we say the defendant is, one, not guilty of the offense charged or any lesser included offense. If you find the defendant not guilty of the offense charged or any lesser included offense, stop and sign the verdict slip.
JUDGE CANNONE: Now, then you go on to guilty of the offense as charged, manslaughter while operating a motor vehicle under the influence of liquor. Check one or both of the following, manslaughter while operating a motor vehicle under the influence of liquor and or manslaughter while operating a motor vehicle with a blood alcohol level of .08 or greater.
JUDGE CANNONE: If you find the defendant guilty of manslaughter while operating a motor vehicle under the influence of liquor, stop and sign the verdict slip.
JUDGE CANNONE: That means, on each one, when you stop and sign the verdict slip, that means you have a verdict on this indictment. So stop and sign the verdict slip. If you find her not guilty of manslaughter while operating a motor vehicle under the influence of liquor, then continue below to the lesser included offense.
JUDGE CANNONE: And first under three is involuntary manslaughter. If you find the defendant guilty of the lesser included offense of involuntary manslaughter, stop and sign the verdict slip. If you find her not guilty of involuntary manslaughter, then continue to the next page.
JUDGE CANNONE: Guilty of the lesser included offense of motor vehicle homicide, felony OUI liquor, and negligence and you have to check one or both of the following. Motor vehicle homicide under the influence of liquor and or motor vehicle homicide by operating a motor vehicle with a blood alcohol level of .08 or greater.
JUDGE CANNONE: If you find the defendant guilty of the lesser included offense of motor vehicle homicide, felony OUI liquor and negligence, stop and sign the verdict slip.
JUDGE CANNONE: If you find her not guilty of motor vehicle homicide under the influence of liquor, then continue below to the guilty of the lesser included offense operating under the influence. You check one or both of the following, operating a motor vehicle under the influence of liquor and or operating a motor vehicle with a blood alcohol level of .08 or greater.
JUDGE CANNONE: If you find the defendant guilty of operating a motor vehicle under the influence of liquor, then stop. If you find the defendant, you stop and you sign the verdict slip. If you find the defendant not guilty on this offense and all other offenses, check the first box on page one.
JUDGE CANNONE: And remember, your decision must be unanimous. All right, does that make it any clearer, hopefully? All right, so with that, I am going to send you back out.
COURT OFFICER: Please be seated. Court is in session.
JUDGE CANNONE: All right. I'll see you at sidebar so we don't do this part. Jim. Can I have that question please? Thank you. All right. So as counsel knows. We received a question from the jurors. If we find not guilty on two charges but can't agree on one charge, is it a hung jury on all three charges or just one charge? I got some input from the defense at sidebar, essentially, seeing if we could just ignore it. We can't ignore it. To me, it's a theoretical question. And we don't answer theoretical questions. I tell the jurors that they're not to be concerned with the consequences of their verdict. And that's exactly what they're doing here. So I would propose just writing simply, this is not a question I can answer, and sending it back.
MR. JACKSON: The defense position is not certainly enough for it. I can't ignore it, to your question. However, I think that it is apropos, given the timing of when that question came in, literally before the court had answered the other three note card questions, I think that it would be appropriate to send a quick note just asking them, given the fact that there's some clarity in your other questions, does this answer the question? In other words, can you proceed without any further input by the court regarding that second question?
JUDGE CANNONE: So that made sense initially, but why ask them, do I really need to answer it, to then tell them I'm not answering it?
MR. JACKSON: Because I think at some point they need to know what the law is. It's a reporting question.
MR. JACKSON: In other words, I don't see it as theoretical as the court indicated. I see it a little bit differently, which is, what are our options? And the options are built in the law, not in theory. If they come back with a verdict on more than one count, but they're hung on a separate count, they are to report those two counts, whatever counts they came to a verdict on.
JUDGE CANNONE: So that's for a later time, right? So this is, at this point it's premature. It's hypothetical. It's theoretical. I understand your point. I think I disagree with you at this point. It may be something later. The way the question's worded, if I find this, if we do this.
JUDGE CANNONE: I'll hear from the Commonwealth.
MR. BRENNAN: We agree it's consequence related, and the first suggestion, I think, is most appropriate, and we would endorse that.
JUDGE CANNONE: Yeah. I'm going to do that at this time, Mr. Jackson. I'm not going to have a back and forth with them. I'm simply going to say, because it's true, it's the law, that this is not a question I can answer.
MR. JACKSON: But I would strongly suggest that we find some other way. If that question continues to remain, then they're not going to ask that question. I don't think the court can say, or should say, I can't answer the question, because the court can answer that question. The court absolutely can answer it. I would simply say, this question is not before the court without further information, or something like that. Not the court can't answer that question, because if that question remains in their minds, we're going to end up in the exact same position that we were in last year.
JUDGE CANNONE: There are other steps that can be taken to prevent that.
MR. JACKSON: So I think the first step down the wrong path is to say, well, we can't answer that question. Well, we know we can answer that question.
JUDGE CANNONE: So, I don't know if I want to put you in an uncomfortable position.
JUDGE CANNONE: Mr. Yannetti, I'm inclined to answer the question the way I stated.
MR. YANNETTI: Could we have two minutes to confer with counsel?
MR. JACKSON: One minute.
JUDGE CANNONE: How about one minute? You guys are ten minutes late.
MR. JACKSON: Just with a very slight tweak with the court's language. I don't have a principal objection to the court's language that we not answer the question at this time. I would simply ask that the court answer the question as you just suggested: it's premature to address this question at this time.
JUDGE CANNONE: No. What do you say, Mr. Brennan? My response was, this is not a question I can answer, for the reasons I stated. It's theoretical, and we tell jurors that they cannot be concerned with the consequences of their verdict. And that's exactly what you would be asking me to endorse. What's the Commonwealth's position on the proposed?
MR. BRENNAN: I agree with it. That's my suggestion. Yeah.
JUDGE CANNONE: I'm going to send it in like this. Your objection's noted.
MR. JACKSON: Your Honor. If I could make my record a little bit clearer. The court's indicating that it doesn't answer questions about the consequences of the jurors' verdict. That would be punishment. Of course you can't answer a question like that. This is not the consequences of the verdict. It's how do they report a verdict. So I think saying I can't answer this is sending a false message to the jury. If the court would simply indicate, this is not appropriate for me to address at this time, that assuages all concerns. Certainly assuages our concerns, and protects Ms. Read's rights.
JUDGE CANNONE: Well, I think what I could add is, this is a theoretical question, not a question I can answer. That does the same thing. Is there an objection? I understand, Mr. Jackson. Is there an objection to me putting, this is a theoretical question, not a question I can answer? The defense first told me to ignore. So. All right. We are all set. So let's send this in first.
COURT OFFICER: Court. All rise.
JUDGE CANNONE: All right, jurors, I know you want to go home. So it's been a long day for everybody. I have to give you those same cautions. Please do not discuss this case with anyone. Do not do any independent research or investigation into the case. If you happen to see, hear, or read anything about this case, please disregard it and let us know. Be careful with your social media use. We know you've all been working really hard and we appreciate it. So please just clear your heads. Don't think about this case at all. As best you can. And we'll see you tomorrow morning when everybody's fresh to start again. Thank you. We'll see everybody tomorrow. Thank you. Court is adjourned.