COMMONWEALTH OF MASSACHUSETTS: NORFOLK, ss. SUPERIOR COURT CRIMINAL ACTION 22-0117 COMMONWEALTH vs. KAREN READ MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS ‘On June 9, 2022, a Norfolk County grand jury indicted defendant Karen Read on charges of murder in the second degree (Indictment 1), manslaughter while operating under the influence of alcohol (Indictment 2), and leaving the scene of personal injury and death (Indictment 3) following the death of her boyfriend, John O’Keefe, on January 29, 2022. Trial on the matter began in April 2024. There were eight weeks of evidence and nearly five days of deliberations. Afier the jurors expressed to the Court that they were deadlocked for a third time, the Court declared a mistrial. The defendant now moves to dismiss the charges for murder in the second degree and leaving the scene of personal injury and death arguing that retrial would violate the double jeopardy protections of the federal and state constitutions because the jury, in fact, reached a ‘unanimous decision to acquit the defendant on those charges. Alternatively, the defendant argues that dismissal is required because there was no manifest necessity to support the declaration of the mistrial with respect to those charges. After careful consideration, this Court concludes that because the defendant was not acquitted of any charges and defense counsel consented to the Court’s declaration of a mistrial, double jeopardy is not implicated by retrial of the defendant. The motion is therefore DENIED.BACKGROUND On June 25, 2024, the jury began its deliberations in the defendant's trial. In addition to the three indictments, the Court had instructed the jury to consider two lesser included offenses to manslaughter while operating under the influence of alcohol — involuntary manslaughter and motor vehicle homicide (OUI liquor and negligence). On Friday, June 28, 2024, at approximately 12:10 p.m,, the jury foreperson sent a note to the Court. Tt stated: “I am writing to inform you on behalf of the jury that despite our exhaustive review of the evidence and our diligent consideration of all disputed evidence, we have been unable to reach a unanimous verdict.” ‘The Court requested argument from the Commonwealth and the defendant as to whether there had been due and thorough deliberation from the jury. Assistant District Attomey Lally, on behalf of the Commonwealth, argued that the jury had not had sufficient time to deliberate and that therefore, it was far too carly in the deliberative process to give the jury the Tuey-Rodriguiez instruction.' He also pointed out that although the note indicated that the jury had not yet come to a conclusion, it did not indicate that doing so was not possible, Attorney Yannetti, on behalf of the defendant, “disagree[d] with Mr. Lally’s characterization of the note.” He argued: “The word exhaustive is the word that I think is operative here. [The Jury is] communicating to the court that they've exhausted all ‘manner of compromise, all manner of persuasion and they’re at an impasse. You know, this is a case where they jury has the legal instructions. They've only really asked one question, which was to tty and get a report they were not allowed to get, and I think the message has been received that the evidence is closed and they ‘won't get anything more, They've been essentially working nonstop {The use ofthe Tuey-Rodriguiez instruction is a matter of diseretion ofthe tral judge. Commonwealth v, Parreira, 72 Mass. App. Ct. 308, 316 (2008). Its the “orthodox approach to dealing with a deadlocked jury" see Commonwealth v. Firmin, 89 Mass. App. Ct. 62, 64 (2016) citation omitted), and “designed to urge the jury to reach a verdict by giving more serious consideration to opposing points of view.” Commonwealth v. Semedo, 456 Mass. 1,20 (2010).over the last three, four days. We're approaching a weekend. ‘They didn’t come back with this at three o’clock or four o’clock. They're at twelve o’clock and they have nowhere to tum. So our position is the jury should be read the Tuey-Rodriguez model instructions and go from there.” ‘The Court ruled that given the length of the trial, the number of exhibits and witnesses, the complexity of the issues, and that the jury had only been deliberating for three days, deliberations had not been sufficiently due and thorough to warrant a Tuey-Rodriguiez instruction, It instructed the jury to continue deliberating On Monday, July 1, 2024, at approximately 10:45 a.m., the jury sent another note to this Court. This note stated: “Despite our commitment to the duty entrusted in us, we find ourselves deeply divided by fundamental differences in our opinions and state of mind. The divergence in our views are not rooted in a lack of understanding or effort but deeply held convictions that each of us carry, ultimately leading to a point where consensus is unattainable. We recognize the weight of this admission, and the implications it holds.” The Court again requested argument from counsel as to whether there had been due and thorough deliberations. The Commonwealth argued that the jury had been deliberating twenty- two to twenty-three hours but given the length of trial, number of exhibits and witnesses, and complexity of issues, they had not done a thorough deliberation up to this point. Attomey ‘Yannetti, again, had a vastly different view. He argued: “Our view is that itis time for a Twey-Rodriguez [instruction]. They have come back twice indicating essentially that they're hopelessly deadlocked but the content of this latest message is that they have been over all the evidence. ‘The previous message said they did an exhaustive review. ‘This time they said that. . . they have fundamental disagreements about what the evidence means. It's a matter of opinion. It's not a matter of lack of understanding. ‘This court when you sent the jury out encouraged them not to take a straw vote, encouraged them to go over all the evidence in a very‘methodical manner. I think all indications are that they have done that. This is what Tuey-Rodriguez is for.” ‘The Court agreed that the jury had engaged in due and thorough deliberations, noting that this jury had been “extraordinary” and it had never seen a note like this from a jury. It thereafter provided the jury of the full Twey-Rodriguer instruction and asked them to return to the deliberations with those instructions in mind? That same day, at approximately 2:30 p.m., the jury sent another note to the Court, The Court stated to counsel that the jury was at an impasse. After the jurors filed into the courtroom, the Court read the note: “Despite our rigorous efforts we continue to find ourselves at an impasse, Our perspectives on the evidence are starkly divided. Some members of the jury firmly believe that the evidence surpasses the burden of proof establishing the elements of the charges beyond a reasonable doubt. Conversely, others find the evidence fails to meet this standard and does not sufficiently establish the necessary clements of the charges. The deep division is not due to lack of effort or diligence, but rather a sincere adherence to our individual principles and moral convictions. To continue to deliberate would 2 The Tuey-Rodhiguez instruction states: “Our Constitution and laws provide that ina criminal case, the principal method for deciding questions of fact is the verdict ofa jury. In most cases and perhaps strietly speaking in all cases absolute certainly cannot be obtained nor is it expected. The verdict to which each jurot agrees must of course be has or her own verdict, the result of his or her own convictions, and not merely an acquiescence in the conclusions of other jurors. Still, in order o bring twelve minds to a unanimous result, you must examine the issues you have to decide with candor and with the proper regard and respect for each other's opinions. You should consider thet its desirable that this case be decided. You have been selected in the same manner and from the same source as any future jury would be selected, There is no reason to suppose that this case will ever be submitted to twelve persons ‘who are more intelligent, more impartial, or more competent to decide it than you are or that more or clearer evidence will be produced at another tral, With all this in mind itis your duty to decide this case if you can do so conscientiously. In order to make a decision more attainable, the law always imposes the burden of proof on the Commonwealth to establish every essential element of each indictment beyond a reasonable doubt. If you are left with a reasonable doubt as to any essential element of any indictment, then the defendant is entitled to the beneiit of that doubt and must be found “not guilty’ on that indictment. In conferring together, you are to give proper respect to each other's opinions, and listen with an open tind to each other's arguments. Where there is disagreement, those jurors who would find the defendant ‘not guilty” should consider whether the doubt in their minds is a reasonable one ifit makes no impression on the minds of the other jurors who are equally intelligent, who have heard the same evidence with the same attention, who have an equal desire to arrive at the truth and who have taken the same oath as jurors. At the same time, those jurors who would find the defendant ‘guilty’ ought seriously to ask themselves whether they may not reasonably doubt the correctness of their judgment if't isnot shared by other members of the jury. They should ask themselves whether they should distrust the weight or sufficiency of the evidence if thas failed to convince the minds oftheir fellow jurors beyond a reasonable doubi." 4be futile and only serve to force us to compromise these deeply held beliefs.” After reading this note, the Court declared a mistrial and discharged the jury back to the deliberation room to wait for the judge. Counsel remained in the courtroom to discuss an agreeable date to return for a status conference. ‘On July 8, 2024, the defendant filed the instant motion to dismiss supported by affidavits from Attomey Yannetti and co-counsel, Attomey Jackson. Attorney Jackson’s affidavit stated that on July 2, 2024, a juror in the case (“Juror A”) contacted him. Attorney Jackson was able to identify the person as a deliberating juror based on his/her description of who he/she is, where he/she was seated, and certain identifying information (name and occupation) disclosed during the voir dire process. According to Attomey Jackson’s affidavit, Juror A told him that he/she wished to inform him of the truc results of the deliberations because he/she believed those results significantly impact the defendant's rights. Juror A said the jury unanimously agreed that the defendant was not guilty of Counts | and 3 and specifically that the murder charge was “off the table.” Pirst Jackson Affidavit at par. 5. In his affidavit, Attomey Jackson also stated: “Neither Ms. Read nor her counsel consented to the entry of the mistrial. Defense counsel was denied the opportunity to request that the Court inquire on which count or counts the jury may have been deadlocked (including lesser included offenses), and on which count or counts the jury may have arrived at a verdict.” Id, at pars. 9 and 10. Attorney Yannetti's affidavit averred that on July 3, 2024, he received communications from two “informants” who had received information from two deliberating jurors in the case. The first informant (“Informant B”) sent him a screenshot he/she had received from someone else (“Intermediary B”) of text messages that Intermediary B had purportedly received from ajuror (“Turor B”). Attorney Yannetti averred that he was able to positively identify which juror was Juror B based on a first name given to him from Informant B, In the screenshot, Juror B texted Intermediary B, “It was not guilty on second degree. And split in half for the second ‘charge. When the judge sent us back with that Hernandez thing to look at the other side it turned into a bully match. I thought the prosecution didn’t prove the case. No one thought she hit him ‘on purpose or even thought she hit him on purpose. ...” Yannetti Affidavit at par. 4. Attorney Yannetti stated that another informant (“Informant C”) contacted him on July 3, 2024. Informant C told him he or she personally knows a juror (“Juror C”) and that Informant C and Juror C have a mutual friend (“Intermediary C”) who is a current coworker and friend of Juror C. Intermediary C told Informant C via text message that Juror C was @ deliberating juror inthe case, Intermediary C had a discussion over text message with Juror C about the experience of being a juror, Intermediary C said that Juror C said there was “no consideration for murder 2. Manslaughter started polling at 6/6 then ended deadlocked [at] 4no8yes. ..” Yannetti Affidavit at par. 10, Informant C texted back, “interesting. If there was no consideration for murder two, shouldn’t she have been acquitted on that count(] and hung on the remaining chargers [sic] goes back to the jury verdict slip that was confusing”? Id. Intermediary C texted, “she should've been acquitted I agree, Yes, the remaining charges were ‘what they were hung on. And that instruction paper was very confusing,” Jd Attorney Yannetti stated that based on the description of Juror C he received from Informant C and the description of what Juror C told Intermediary C, he could positively identify that Juror C was a deliberating juror. 5 As noted below, defense counsel argued to the Court that the verdict slip for Indictment 2, which allowed the foreperson to check “guilty” for the lesser included offenses, would be confusing for the jury if they decided the defencant was not guilty of all the lesser included offenses. 6Attorney Yannett later filed a supplemental affidavit in support of the defendant's ‘motion to dismiss wherein he stated that he received an unsolicited phone call from an individual identifying himself/herself es Juror B. Juror B told Attorney Yannetti that he/she was familiar with the affidavit he had previously filed and confirmed the substance of the conversation between Informant B and Intermediary B. Juror B clarified that he/she meant to write, “No one ‘thought she hit him on purpose or even knew that she had hit him.” Yannetti Supplemental Affidavit at par. 4, On July 10, 2024, Attorney Jackson submitted a supplemental affidavit stating that on July 8, 2024, another juror (“Juror D") contacted him. He identified this person as a juror by the description of who he/she is, where he/she was seated, and certain identifying information (name and occupation) disclosed during the voir dire process, Juror D told Attomey Jackson that “he/she was ‘uncomfortable’ with how the trial ended. . . . Juror D said that it was very troubling that the entire case ended without the jury being asked about each count, especially Count | and Count 3.” Jackson Supplemental Affidavit at pars. 3-4. According to Jackson's Supplemental Affidavit, Juror D told him that the jury agreed that the defendant was not guilty on Counts 1 and 3, that they disagreed solely on Count 2’s lesser offenses, but that they believed that they were compelled to come to a resolution on all counts before they could or should report verdicts on any counts. Juror D believed all jurors would corroborate his/her account. He/she also stated that if necessary, he/she would testify before the court as long as his/her identity remained protected. On July 18, 2024, Attomey Jackson submitted a second supplemental affidavit stating that on July 17, 2024, he was contacted by another juror (“Juror E”) who he identified by the description of who he/she is, where he/she was seated, and certain identifying information (nameand occupation) disclosed during the voir dire process. Juror E also stated that the jury was ‘unanimous on Counts 1 and 3, that the defendant was not guilty of those charges, and that they ‘were deadlocked on one of the “lower charges” on Count 2. Jackson Second Supplemental Affidavit at par. 5. On August 1, 2024, the Commonwealth filed a Post-Trial Notice of Disclosure stating that ADA Lally had received two unsolicited voicemails from an individual identifying themselves as a deliberating juror stating that the jury had been unanimous on Counts 1 and 3, ‘The Commonwealth also received emails from three individuals identifying themselves as jurors stating that they wished to speak anonymously. In its response to the emails, the Commonwealth stated that it was ethically prohibited from inquiring as to the substance of the jury deliberations, and that it could not promise confidentiality as it may be required to disclose the substance of any conversation to the defendant or the Court, All three jurors declined to communicate further with the Commonwealth, DISCUSSION ‘The Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment to the United States Constitution, and Massachusetts common and statutory law protect an individual defendant from being twice placed in jeopardy for the same crime. Perrier v. Commonwealth, 489 Mass, 28, 31 (2022). See Commonwealth v. Taylor, 486 Mass. 469, 483 (2020), quoting Oregon v. Kennedy, 456 U.S. 667, 671-672 (1982) (“[T he [dlouble [Jeopardy {clause affords a criminal defendant a ‘valued right to have his trial completed by a particular tribunal’” [citation omitted]), A defendant is entitled to protection from double jeopardy “if there had been some event, such as an acquittal, which terminates the original jeopardy,” see Commonwealth v. Hebb, 477 Mass. 409, 413 (2017), or if a mistrial isentered “without the defendant's request or consent . .. unless there was a manifest necessity for ‘the mistrial” (quotation and citations omitted). Taylor, 486 Mass. at 483. See Hebb, 477 Mass. at 413, quoting Yeager v. United States, 557 U.S. 110, 118 (2009) (“The ‘interest in giving the prosecution one complete opportunity to convict those who have violated its Laws’ justifies treating the jury’s inability to reach a verdict as a nonevent that does not bar retrial.”). In her motion to dismiss, the defendant argues that retrial on Indictments 1 and 3 would violate the double jeopardy protections of the federal and state constitutions because, despite absence of a jury verdict, the jury, in fact, reached a unanimous decision to acquit her on those charges, or alternatively, because there was no manifest necessity to support the declaration of the mistrial with respect to the charges. After careful consideration, the Court concludes that the defendant's arguments are without merit, I. Acquittal of the Defendant The defendant first contends that she was acquitted on Indictments 1 and 3, and that therefore retrial is barred based on her attomeys’ affidavits purporting to reflect statements by Jurors that the jury reached a unanimous conclusion that she was not guilty on those charges. Although all the statements in the affidavits are from purported jurors who wish to remain anonymous, for the purposes of this motion, the Court accepts the statements as true and accurate.* Even doing so, any agreement among the jurors as to Counts | and 3 cannot be considered acquittals for purposes of double jeopardy. To trigger double jeopardy protection, “[a]n acquittal requires a verdict on the facts and merits” (citations and quotations omitted). Commonwealth v. Brown, 470 Mass. 595, 603 * While the Court accepts the averments as true and accurate, it disagrees with defense counsel’s characterization of the statements as “strong and uncontradicted.” ‘The substance of the conversations directly contradicts the notes the jury wrote to the Court during deliberations, the last of which expresses disagreement over whether the ‘Commonwealth met its burden as tothe “elements of the charges.” (Emphasis added). 9(2015). See G. L. c. 263, § 7 (“A person shall not be held to answer on a second indictment or complaint for a erime of which he has been acquitted upon the facts and merits ...”), And, “the only verdict which can be received and regarded, as a complete and valid verdict of ajury .. is an open and public verdict . . affirmed in open court, as the unanimous act of the jury, and in presence of the whole panel, so that each juror has an opportunity to express his dissent to the court, in case his decision has been mistaken or misrepresented by the foreman or his fellows, or in case he has been forced into acquiescence by improper means” (citations omitted), Commonwealth v. Zekirias, 443 Mass. 27, 33 (2004), See Mass, R. Crim. P. 27(a) (“The verdict shall be unanimous. It shall be a general verdict returned by the jury to the judge in open court. ‘The jury shall file a verdict slip with the clerk upon the return of the verdict.”). As such, “the weight of final adjudication” cannot “be given to any jury action that is not returned in a final verdict” and a distinction must be made “between agreement on a verdict, and return, receipt, and recording of a verdict” (citations omitted). Juvenile v. Commonwealth, 392 Mass. 52, 56~ 57 (1984). Because there was no open and public verdict affirmed in open court rendered in this case, the defendant was not acquitted of any of the charges. The only unanimous act of the jury here was their representation to the Court that they were “at an impasse” and unable to agree on whether the Commonwealth had established beyond a reasonable doubt the “elements of the charges.” The purported later attestations by some jurors, after they had been dismissed, that the Jury had in fact agreed on some of the charges during deliberations do not have the “force of a final verdict.” Commonwealth v. Floyd P., 415 Mass. 826, 831 (1993). Sce A Juvenile, 392 Mass. at 57 (after mistrial was declared due to deadlock, judge did not err in refusing to accept signed verdict slips recovered from deliberation room showing “not guilty” because “[ not 10‘enough to show that the jury may have agreed on some issues at some time; if that limited showing were to control, uncertainties would be invited”); sce also Blueford v. Arkansas, 566 US. 599, 606 (2012) (double jeopardy did not bar retrial after hung jury where foreperson reported unanimous vote on offense before deliberations had concluded but deadlock at conclusion), ‘The defendant argues that it is elevating form over substance to not accept that the statements in the affidavits reflect an acquittal of the defendants on Counts | and 3. However, the rendering of a verdict in open court is not a “ministerial act” as the defendant contends. Rather, it communicates the finality of the deliberations, and its pronouncement in open court ‘ensures its unanimity. See A Juvenile, 392 Mass. at 57 (“Public affirmation in open court Provides safeguards against mistakes.”). Indeed, the authority upon which the defendant relies places particular importance upon the jury’s pronouncement of its findings in open court. See Blueford, 366 US. at 613 (Sotomayor, J., dissenting) (arguing that “the forewoman’s announcement in open court that the jury was ‘unanimous against’ conviction on capital and first-degree murder . ... was an acquittal for double jeopardy purposes”).* Thus, a “verdict in substance” is a “final collective decision ... reached after full deliberation, consideration, and compromise among the individual jurors ... And when that decision [is] announced in open court, it [becomes] entitled to full double jeopardy protection” (emphasis added). Id. at 616, citing Commomwealth v. Roth, 437 Mass. 777, 796 (2002) (“declining to give effect to ‘the verdict received from the lips of the foreman in open court’ would ‘elevate form over * In written and oral argument, the defendant also relies on language from Taylor, 486 Mass. at 482. Taylor discussed whether a judicial determination to terminate proceeding based on 2 procedural ground implicated double jeopardy. The Supreme Judicial Court explained, “What constitutes an ‘acquitial’ is not to be controlled by the form Of the judge’s action,” and that the determination does not depend on “checkmsarks on a form.” Jd. This language in Taylor does not inform the Court as to the circumstances here, uwsubstance”), Where there was no verdict announced in open court here, retrial of the defendant, does not violate the principle of double jeopardy. TI, Manifest Necessity of Mistrial The defendant's motion to dismiss also argues that double jeopardy bars re-prosecution because she did not consent to a mistrial and there was no manifest necessity to declare one. This argument, too, is without merit, “A defendant's consent to a mistrial removes any double jeopardy bar to retrial” (quotation and citation omitted). Pellegrine v. Commonwealth, 446 Mass, 1004, 1005 (2006). ‘Consent may be explicit or implicit. Explicit consent may occur by either moving for a mistrial or agreeing to one. Commonwealth v. Edwards, 491 Mass. 1, 13 (2022). Consent to a mistrial may be implied “where a defendant had the opportunity to object [to a declaration of a mistrial] and failed to do so.” Pellegrine, 446 Mass. at 1005, See United States v. McIntosh, 380 F.3d 548, 554 (Ist Cir, 2004) (“Where the defendant sits silently by and does not object to the declaration of a mistrial even though he has a fair opportunity to do so, a court may presume his consent” [quotation and citation omitted]). See also United States v. You, 382 F.3d 958, 964-965 (9th Cir, 2004), cert. denied, $43 U.S. 1076 (2005) (“a court may infer consent only where the circumstances positively indicate a defendant's llingness to acquiesce in the mistrial order” [quotations and citations omitted]); United States v. Goldstein, 479 F.2d 1061, 1067 (24 Cit. 1973) (“Consent [to a mistrial] need not be express, but may be implied from the totality of the circumstances attendant on a declaration of a mistrial.”), As noted, the Court here declared a mistrial after the jury reported three times that they were deadlocked. After the second time, the Court determined that the jury had engaged in due and thorough deliberations and gave the Tuey-Rodriguez instruction before sending the jury to 12deliberate further. Massachusetts General Laws ¢, 234A, § 68C, provides that if “a jury, after due and thorough deliberation, returns to court without having agreed on a verdict, the court may state anew the evidence or any part of the evidence, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law” (emphasis added). See Commonwealth v. Jenkins, 416 Mass. 736, 737 (1994) (“If, after due and thorough deliberation, the jury twice advise the judge that they are unable to reach a verdict, the judge may not properly send the jury out again without their consent, unless the jury ask for some further explanation of the law.”). In their note to the Court, the jury specifically stated, “{tJo continue to deliberate would be futile and only serve to force us to compromise these deeply held beliefs,” making it clear that they would not consent to continuing their deliberations, Aulorney Yannetti twice argued for the Court to give the Tuey-Rodriguez instruction—the final step before the Court would declare a mistrial. See Jenkins, 416 Mass. at 737; see also Ray vy. Commonwealth, 463 Mass. 1, 4 (2012) (counsels’ request for Tuey-Rodriquez instruction “permit{ed] the inference that both parties were provided an opportunity to be heard on possible alternatives to a mistrial”), Specifically, on Friday, June 28, 2024, after three days of deliberations, when the jury sent their first note indicating that they had engaged in an “exhaustive review of the evidence” and “ha{d] been unable to reach a unanimous verdict,” Attomey Yannetti argued that the jury had engaged in due and thorough deliberations, was at an impasse, and should be given the Tuey-Rodriguez instruction. The following Monday, when the jury sent a second note after deliberating for approximately two hours, stating that “consensus was unattainable,” Attomey Yannetti again argued that due and thorough deliberations had 1B