Sgt. Manning is back on the stand – we are getting ready to hear the second taped phone call…transcripts passed to the jury.
January 24th, 2006 call:
Thanks for calling. We go the results back from the ME today. This call is recorded, is that ok? Yeah, uh well no…
The cause and manner of death…both Rachel and Lilly died of a gunshot wound. We’re considering it a Foul Play death. Basically; a homicide. Ok.
May I ask you some questions about when you came up to the bedroom? Ok.
What did you see and remember? I walked in…I could see Rachel’s head. She was just there. I walked further in and saw Lilly. When I saw Lilly, I could see what had happened. There was blood around her mouth? Yeah and in it.
How did you determine she was shot? I saw a hole…a burn hold. You could see that from standing on the side of the bed? Yeah…but…yeah…no.
Did you move the arm? No. I pulled the covers over. I know I didn’t touch them.
How close did you get to the bed. I think my arms were on it. What did you notice about Rachel. I did…ummm.
How did you know she was dead? There was just no question about it.
You said you saw a bullet hole on Lilly. Yeah? What did you see on Rachel? Did you know she was shot? That’s what I thought. When you put it like that…
I saw it on Lilly…I don’t think that’s strange. Around the ribcage.
Did you see any trauma to Rachel. No. I didn’t…no it was all on Lillian. I don’t think….I think there was blood on the covers…on the sheets.
On the covers they were lying on or the ones you pulled up? Yeah, You think you remember? Yeah…ummm I don’t know if there was or not. I haven’t thought about it.
Were there any pillows around…Uhhhh I think maybe Rachel was on a pillow.
You saw nothing on Rachel….I ummm think uhh yeah, no.
We found the BMW…ok good.
I think there were some of the keys on the keychain that were to the House in Carver. Oh, you think so? I’m not certain, but I think so. Oh, ok.
I’m not 100% sure, but I think the Carver house keys are on it. Maybe for Hopkinton house. I don’t…no that’s not right.
On Friday, does the trash come on Friday? Yes, but we didn’t put it out. Does it come in the morning or afternoon? I don’t know…ummm I think it comes in the morning.
And you couldn’t get in Joe and Priscilla house? No, I couldn’t.
Did you use your credit cards on Friday? I first used it in the car park and then bought gas after.
You didn’t carry a lot of cash? No.
The Staples you talked about, is there a Starbucks? Umm yeah and a bookstore.
Was there a Homes Good stores? The have candle holders, furniture. Oh yeah. There’s a long line of stores.
You moved into the house on the 12th? It was a Thursday. Not many people knew you lived there? No.
There wasn’t any disagreements with friends or Joe and Priscilla? No, everything was good.
You remember the garage door being open? Uh, yeah.
There is nothing you can think of as to why this might have a occurred? No. I shouldn’t have happened.
Your right, it shouldn’t have happened. We are trying to look at every situation we can. Ok.
Joe’s guns. He has a bunch of guns in the house? Yeah.
You said the reason you want to Joe’s was to get a gun and hurt yourself? Yeah.
But you could get in the house? No.
Had you ever used the guns? I went with Joe once.
Did he have to teach you about the guns? Yeah. You don’t know about guns? No, I don’t really like them.
When you went, what guns did you fire? We fired a small handgun. Did you ever touch the handguns? Yeah, yes I touched the. You touched them at the house? No, at the gun club.
If I get Joe’s guns, would there be any reason for your prints on the guns? I wouldn’t…I don’t now how long they last. I would say no.
I’m going to ask a number of people, not just you. That seemed to upset you. Well, he may have cleaned them.
I think I had the rifle…
Part of the ME exam, we do toxicology. What’s that? They test for drugs and alcohol and it will take a couple of weeks.
Rachel and Lilly died from gunshot wounds. That’s definite? Yes. Oh, ok.
We are going to keep on the investigation. Ok. You have any questions at all? I…ummmm did it take long for them to die? I’m not a doctor, the ME could answer that. Well you know with Lilly and the state of the room…I don’t think they suffered.
What do you mean by the state of the room? Ummm, the blood and all.
I can check with the doctor. It’s almost like piece of mind? Ok, I’d appreciate that.
Oh yeah, there was one thing…do you know the time? The exact time they died? Yeah. This is not like TV. Yeah, that’s where I got that from. They can’t give the exact time. I talking about the timeframe you gave me.
It doesn’t comfort any way, it doesn’t change things.
No doctor could give you the exact time.
Have you talked with Priscilla and Joe? You spoke to them before you talked to me?
Are you staying there for a while? Now that I’m coming to terms with it…it’s the journey back that I’m not looking forward to. When can we begin the funeral arrangements? The bodies can be released now.
Where was Lilly born? In England.
Yeah, the bodies are ready to be released do you want the number to the ME’s office? Yes.
Manning gives him the number.
Anything else? No, I don’t…no…it’s shock. You don’t want to know what’s happened, but when you do you cn deal with that.
Have you told them? We’ll take care of that, I’ll tell them.
Will you be there for a while? Yeah, till we work it out. Work what out? The funeral arrangements.
In the weeks and months after the conversations, Manning and his colleagues did further investigation into the trial.
Cross - Weinstein
Yikes, no questions!
Long pause, bet the prosecution is going to rest!
Wonder what Weinstein is going to do.
THE PROSECUTION RESTS!
Judge and attorneys are going over jury instructions.
Judge will give standard instructions with function of judge, jury, evidence, credibility. She will also give limiting instructions modified from what was already said to the jury.
Fabbri suggests on p. 13, prior bad acts include "relevant to prove state of mind, intent, identity, etc.
The identity of person/persons operating the computer may be of issue. They should be expanded to include identity.
Judge: Pattern of conduct, yes. Prior bad acts?
Page: There has to be a finding that they believe it is the defendant.
Judge: Judge looks at case law. She will check on it to make sure it encompasses preparation, plan, identity.
Fabbri: Mainly concerned with identity.
Judge: Next, p. 18. She won't instruct on extreme abuse, atrocity. (The perpetrator tended to maximize suffering)
Bottom of p. 21: Is directly from the model instruction. If so, it is consistent with the instructions the judge sent.
Page: Objects under due process, it invades the province of the jury to exercise their own discretion.
Judge: The jury must find for the most serious crime the Commonwealth has proved beyond a reasonable doubt.
Voluntariance is not an issue. Next instruction mentioned will not be given.
Judge Request from the defendant: the admissibility of material from a learned treatise. DiMaio, Spitz The witness acknowledged both treatises are reliable and relied on by those who practice in the field of pathology. The jury can consider those statements as evidence.
Defendant: Failure to test. There is no such thing as a Bowden instruction.
Page: There were normal procedures that weren't done by the ME. Not just a minor instance, the ME was never told about GSR. Page says it is a major, major factor.
Judge: There is no such instruction, not that it isn't an appropriate for argument.
Fabbri: Council must be able to argue the issue is inappropriate.
Consciousness of innocence vs. guilt. Fabbri states case law. It is in the model jury instructions. There may be innocent reasons the defendant did what he did and this may be mentioned to the jury. Consciousness of guilt will be included as per standard charge.
Page: P. 20 "Firearm is a dangerous weapon" invades the province of the jury. May argue after given to jury.
Page mentions another one which is about finding a defendant guilty even without intent. She has no case law.
Fabbri: 1st degree - only first prong of malice applies
2nd degree - others apply
Page: Wants involuntary manslaughter included. Will not be given.
The judge must give 3rd prong of malice.
If 2nd degree verdict, the judge will ask about which prong(s) of malice proven.
Fabbri: Wants to know if there will be mention of circumstantial evidence.
Judge: Cites what she sent to attys. "Whether the evidence is direct or circumstantial or a combination of the two, the jury can find the defendant guilty beyond a reasonable doubt.
Page: Wants instruction for ? Will be included in "housekeeping matters." This is something about the defendant not testifying.
Page objects to language about finding the defendant of the highest charge as mentioned earlier.
Judge will define "possession" in terms of ammunition.
4th element - possession of the firearm outside the residence or place of business is required in this case.
Operable firearm below 16 inches, outside of home and possessed. In reference to ammunition.
Judge: "Accused does not have a license to carry."
This is a little hard to follow!
Verdict slips will reflect:
Guilty 1st degree
Guilty 2nd degree
Other charges will be
Closing arguments at 11:15 EST!