Commonwealth v. Read — Trial ArchiveAllison McCabe — Direct/Voir Dire
660 linesWhereupon, ALLISON MC CABE having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: Whenever you are ready, Mr. Lally.
MR. LALLY: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good afternoon, ma'am.
MS. MCCABE: Good afternoon.
MR. LALLY: Could you please state your name and spell your last name for the jury?
MS. MCCABE: Alli McCabe. M-C-C-A-B-E.
MR. LALLY: And where do you live, ma'am?
MS. MCCABE: Canton.
MR. LALLY: And how long have you lived in Canton?
MS. MCCABE: Basically my whole life except the first few months I lived in Stoughton.
MR. LALLY: And do you work? Do you go to school?
MS. MCCABE: I'm a student.
MR. LALLY: In college; is that correct?
MS. MCCABE: Yes.
MR. LALLY: And what year are you in in college?
MS. MCCABE: I just finished my sophomore year.
MR. LALLY: And, when living in Canton, who, if anyone, do you live in Canton with?
MS. MCCABE: My two parents and my three sisters.
MR. LALLY: So you're one of four girls; is that correct?
MS. MCCABE: Correct.
MR. LALLY: Okay. And are you the oldest?
MS. MCCABE: Yes.
MR. LALLY: And their parents, what are their names?
MS. MCCABE: Matt and Jen.
MR. LALLY: If I could turn your attention to January 28th, into January 29th of 2022, do you recall those days?
MS. MCCABE: Yes.
MR. LALLY: And do you recall what days of the week those were?
MS. MCCABE: Friday and Saturday, I believe.
MR. LALLY: And so on that Friday evening, starting with there -- well, let me ask you this first: At that time, you were a high school student; is that correct?
MS. MCCABE: Correct.
MR. LALLY: And where did you go to high school?
MS. MCCABE: Canton High School.
MR. LALLY: All four years?
MS. MCCABE: Yes.
MR. LALLY: And did you play any sports when you were at Canton High School?
MS. MCCABE: Yes.
MR. LALLY: And what sports did you play?
MS. MCCABE: Soccer, hockey and lacrosse.
MR. LALLY: And so January, that would have been which sports season?
MS. MCCABE: Hockey season.
MR. LALLY: Now, with respect to the hockey, as far as that evening of the 28th, how did your evening start out or what, if anything, were you doing first that evening?
MS. MCCABE: It started with a team dinner at my house. The hockey team came over. We had dinner. Then I went to my sister's basketball game at Canton High School. Then I was hanging out with two of my friends. We were driving around. Then night ended with me driving Colin Albert home.
MR. LALLY: And so let me start sort of back at the beginning before we go all the way through. So as far as the team dinner, is that something that was like a weekly thing?
MS. MCCABE: Yeah. It was usually like the night before a game.
MR. LALLY: And it sort of rotated between different players' houses?
MS. MCCABE: Correct.
MR. LALLY: And so where was it on that particular Friday?
MS. MCCABE: That night it was at my house.
MR. LALLY: And about what time did the team dinner get done or what time did that wind down and you went to the basketball game?
MS. MCCABE: I'm not sure. The basketball games typically start around 6:30. So I assume around then.
MR. LALLY: And who, if anyone, from your family was involved in the basketball game?
MS. MCCABE: My younger sister.
MR. LALLY: And was she JV, varsity? What was she playing on at that time?
MS. MCCABE: Varsity.
MR. LALLY: Varsity. And who, if anyone else, from your family was at the basketball game?
MS. MCCABE: My parents. I'm not sure about my sisters.
MR. LALLY: And did you go with your parents or separately or how did you get there?
MS. MCCABE: I believe I drove and I arrived later than my parents.
MR. LALLY: And, as far as at that time, did you have your own car?
MS. MCCABE: Yes.
MR. LALLY: Okay. And what kind of car did you have?
MS. MCCABE: A little Ford Fusion, blue.
MR. LALLY: And, when you arrived there -- you're a high school senior, correct?
MS. MCCABE: Correct.
MR. LALLY: Did you sit with your parents during the game?
MS. MCCABE: No.
MR. LALLY: There's sort of like a student section; correct?
MS. MCCABE: Correct.
MR. LALLY: Okay. And so you sat there with your friends?
MS. MCCABE: Yes.
MR. LALLY: And, when the game gets over, where was it that you went from there?
MS. MCCABE: I believe I was just driving around with two of my friends and then we -- as we were driving, we came across a dog on the side of the street. And we knew a snowstorm was coming. So we picked the dog up and then brought it to the police station and then drove the dog back to its owner's house.
MR. LALLY: As far as the friends that you were driving around with, what are their names?
MS. MCCABE: Avery Piantedosi and Danielle Seaman.
JUDGE CANNONE: Would you do us a favor and spell those last names for the court reporter, please?
MS. MCCABE: Yes. P-I-A-N-T-E-D-O-S-I.
COURT REPORTER: And the second name?
MS. MCCABE: Danielle Seaman, S-E-A-M-A-N.
COURT REPORTER: Thank you.
BY MR. LALLY:
MR. LALLY: And those were friends of yours from school, from Canton High School, as well?
MS. MCCABE: Yes.
MR. LALLY: And had they been with you at the game previously?
MS. MCCABE: Yes. I believe so.
MR. LALLY: When you say "drove around," whereabouts were you driving?
MS. MCCABE: Through Canton, pretty aimlessly.
MR. LALLY: And at some point you come upon a dog; is that correct?
MS. MCCABE: Correct.
MR. LALLY: And where was that?
MS. MCCABE: On Elm Street.
MR. LALLY: This is a dog, obviously, unfamiliar to you; is that correct?
MS. MCCABE: Yes.
MR. LALLY: So what did you do with the dog?
MS. MCCABE: The dog ran over to the car when we stopped. And we picked the dog up. And we really didn't know what to do with it. So we brought it to the police station.
MR. LALLY: And do you recall at all what kind of dog it was?
MS. MCCABE: No. White.
MR. LALLY: Big dog? Small dog?
MS. MCCABE: It was small. He was white and brown. I'm not sure what type.
MR. LALLY: And so while you are at the police station, what, if anything, did you learn about that dog that you had brought to the police station?
MS. MCCABE: I brought the -- or I went in the police station. The dog stayed in the car with one of my friends. And, as I was walking in and telling the officer that I found a dog, he got a call from the owner. And she asked if -- she was like, oh, can you return my dog, please.
MR. LALLY: So you brought the dog back to the owner?
MS. MCCABE: Yes.
MR. LALLY: Do you know about what time all of that was going on?
MS. MCCABE: I'm not sure.
MR. LALLY: Now, you mentioned that you had picked up a person by the name of Colin Albert; is that right?
MS. MCCABE: Correct.
MR. LALLY: Okay. And who is Colin Albert to you or could you describe to the jury sort of your relationship with Colin?
MS. MCCABE: I've known Colin since I've been born. Our families are very close. We went to high school together, school together growing up, in the same friend group. So we're very close.
MR. LALLY: So he was in the same grade as you; is that right?
MS. MCCABE: Correct.
MR. LALLY: Okay. So he was a senior at this time, as well?
MS. MCCABE: Yes.
MR. LALLY: Okay. And you have friends, mutual friends together?
MS. MCCABE: Yes.
MR. LALLY: Now, the two of you are not actually sort of blood related; is that correct?
MS. MCCABE: Correct.
MR. LALLY: But you have sort of relatives in common; is that correct?
MS. MCCABE: Yes.
MR. LALLY: And to that point, as far as when he reached out to you -- well, let me ask you this: How is it that you came to come by and sort of pick him up on that evening?
MS. MCCABE: He texted me and was asking for a ride. And then I responded, drove, got him, texted him when I arrived.
MR. LALLY: Now, as far as that sort of -- I don't know what exactly to call it. But, as far as you picking him up at certain places like on weekend nights, was that out of the realm of normalcy or was that something that happened on occasion?
MS. MCCABE: No. That's common. He knew I was driving that night. So its pretty common. Our friends, we always just drive each other around and stuff.
MR. LALLY: Okay. And, without getting too much into it as far as high school was concerned, particularly when someone was drinking, would they call and ask for a ride?
MS. MCCABE: Correct. Yes.
MR. LALLY: Rather than drive their own car?
MS. MCCABE: Yes.
MR. LALLY: And, as far as you knew, was Colin drinking at least at some point during that evening?
MS. MCCABE: Yes.
MR. LALLY: And is that why he needed a ride?
MS. MCCABE: Yes.
MR. LALLY: Okay. And, with respect to your parents, did you -- around this time that you're driving around and you're going to pick up Colin, did you have any idea where your parents were or what they were doing?
MS. MCCABE: I knew they were going out after the basketball game. But, no, I didn't know. I have their Life360. They have mine. I wasn't sure, though.
MR. LALLY: And, as far as the Life360 goes, is that something that you sort of keep track of them or they keep track of you?
MS. MCCABE: It's more them keeping track of me.
MR. LALLY: Now, do you know approximately what time it was that you first get sort of -- Colin reaches out via text to pick him up?
MS. MCCABE: I believe it was around midnight. I'm not sure exactly but around midnight.
MR. LALLY: And did you know where he was when he asked you to pick him up?
MS. MCCABE: Yes. The Alberts' house, 34 Fairview.
MR. LALLY: And is that a house that you are familiar with?
MS. MCCABE: Yes.
MR. LALLY: Okay. And what, if any, relationship do you have to the people that live at the Alberts' house?
MS. MCCABE: My aunt and uncle and my cousins.
MR. LALLY: So Brian Albert is your uncle, correct?
MS. MCCABE: Correct.
MR. LALLY: Nicole Albert is your aunt?
MS. MCCABE: Correct.
MR. LALLY: And how was she your aunt? Your father's side, your mother's side?
MS. MCCABE: My mother's sister.
MR. LALLY: And Colin Albert, obviously last name Albert, he's related to people at Fairview, as well?
MS. MCCABE: Correct.
MR. LALLY: Okay. But sort of on the other side of the family?
MS. MCCABE: Correct.
MR. LALLY: And do you know what -- as far as your conversation with Colin, do you know why he was over at that house that night?
MS. MCCABE: It was Brian, Little Brian's birthday.
MR. LALLY: And so he had gone over for that purpose, and you went by to pick him up?
MS. MCCABE: Yes.
MR. LALLY: Do you recall where you were or sort of who you were with when you first get that text or communication from Colin to pick him up?
MS. MCCABE: Yes. I was at another friend's house. After I drove Avery and Danielle home, I went somewhere else.
MR. LALLY: So you drove the two friends that you were with earlier home and then you went somewhere else?
MS. MCCABE: Yes.
MR. LALLY: And, at that point, did you get a text from Colin?
MS. MCCABE: Yes.
MR. LALLY: Now, do you recall whether or not the information you had as to where Colin was that night, is that something that came via text, as well, or was that a phone call or some other type of communication?
MS. MCCABE: I knew he was there. It could have been a phone call. I'm not sure.
MR. LALLY: So were there a variety of different ways that you would have communicated with Colin around that time?
MS. MCCABE: Yes. There's other apps, as well.
MR. LALLY: I'm sorry. You said through apps, as well?
MS. MCCABE: Yes.
MR. LALLY: And what kind of apps were those?
MS. MCCABE: For example, like Snapchat.
MR. LALLY: So you had each other's sort of Snapchat information, phone number information, call, text, Snap. It could have been any of those three?
MS. MCCABE: Yes.
MR. LALLY: Okay. Now, when you get that communication from him to come pick him up, about how long a period of time was it from the time that you get the text from Colin to the time that you arrive in the area of Fairview?
MS. MCCABE: I'm not sure.
MR. LALLY: And you're familiar with that home at 34 Fairview, right?
MS. MCCABE: Correct.
MR. LALLY: It's a place you've been to countless times before as you're related to the people that own it?
MS. MCCABE: Correct.
MR. LALLY: And do you recall from where you were coming from as far as how did you come to Fairview? Would that have been on the Chapman side or the Cedarcrest side or how did you come there?
MS. MCCABE: I don't remember.
MR. LALLY: And, when you get to the home, you obviously park at some point, correct?
MS. MCCABE: Correct.
MR. LALLY: And where in relation to the house did you park?
MS. MCCABE: I believe in the driveway on the left side. I'm not entirely sure. I just believe that.
MR. LALLY: Okay. And, when you arrive, what, if any, communication did you send to Colin?
MS. MCCABE: I texted him, saying, here.
MR. LALLY: And, after you texted that to Colin, he comes out of the house; is that correct?
MS. MCCABE: Correct.
MR. LALLY: And, when he comes out of the house, about how long a period of time was it from the time that you texted him here to the time that he comes out to the car?
MS. MCCABE: I'm not sure. A few minutes.
MR. LALLY: And, in the area around the time that you arrive on Fairview Road, what, if anything, do you recall in regard to the weather or what was it doing at that point?
MS. MCCABE: I believe it was starting to snow. Nothing crazy.
MR. LALLY: As far as accumulation, what, if anything, did you observe at that time?
MS. MCCABE: Lights on in the house. That's it.
MR. LALLY: As far as the snow was concerned, was it starting to sort of stick to the ground?
MS. MCCABE: I don't remember.
MR. LALLY: So you text Colin shortly thereafter. He comes out; is that right?
MS. MCCABE: Correct.
MR. LALLY: And do you recall -- you're familiar, obviously, as I've asked you a couple of times now with the house, there are two doors in the front of the house; is that right?
MS. MCCABE: Yes.
MR. LALLY: Do you know which are the two doors Colin came out of?
MS. MCCABE: No. I'm not sure.
MR. LALLY: Okay. And, when he came down, he came over to the car, correct?
MS. MCCABE: Yes.
MR. LALLY: And you're in the driveway?
MS. MCCABE: Yes.
MR. LALLY: And he gets into what part of the car? The front passenger seat?
MS. MCCABE: Yes.
MR. LALLY: And, from the time that you -- so when you leave from there, where is it that you went?
MS. MCCABE: His house and then my house.
MR. LALLY: So you dropped him off at his house and then you went home?
MS. MCCABE: Correct.
JUDGE CANNONE: Mr. Lally, we are actually going to break here. We have to break a little bit early, but we'll be back at 2:00. I'll ask you to sit in your seat and let the jurors go out first.
MS. MCCABE: Thank you.
(Whereupon, the jury is escorted from the courtroom and the luncheon recess is taken.)
A F T E R N O O N S E S S I O N
(Court resumes at 2:03 p.m.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right. Could we have Ms. McCabe, please?
COURT CLERK: I remind you, ma'am, you are still under oath.
JUDGE CANNONE: All right. Mr. Lally, whenever you're ready.
MR. LALLY: Thank you, Your Honor.
BY MR. LALLY:
MR. LALLY: Now, Ms. McCabe, if I could take you back just to a little bit from where we had left off. When you arrive at the residence at 34 Fairview Road, you pulled into the driveway; is that correct?
MS. MCCABE: I believe so.
MR. LALLY: And, obviously, on that date, you were familiar with the types of vehicles that your parents drove?
MS. MCCABE: Yes.
MR. LALLY: And did you see any of your parents' vehicles at the home when you pulled in and parked in the driveway?
MS. MCCABE: No.
MR. LALLY: And, when you got to the house, at any point did you exit the car or go inside the house?
MS. MCCABE: No.
MR. LALLY: So you texted him that you were there, and you stayed in the car and he came out?
MS. MCCABE: Yes.
MR. LALLY: And when Colin came out to the car, what, if any, observations did you make of him in regard to his sobriety, as far as what, if any, observations did you make with respect to that?
MS. MCCABE: Normal.
MR. LALLY: He didn't seem overly intoxicated to you?
MS. MCCABE: No.
MR. LALLY: And, as far as his face or features or from whatever you could see, what, if any, injuries did you observe on Colin when he came out?
MS. MCCABE: None.
MR. LALLY: And how would you describe his demeanor when he came out and he got into the car?
MS. MCCABE: Normal.
MR. LALLY: Now, during the course -- you drove from the Fairview home to Colin's house; is that right?
MS. MCCABE: Yes.
MR. LALLY: And where was Colin living at that point?
MS. MCCABE: I don't know the address, but his new house, not the old -- not the one where he was neighbors with John. The newer house.
MR. LALLY: And, if you could, just generally speaking, where was that in relation to the town of Canton? What was it near?
MS. MCCABE: It's in the center of town, close to the library.
MR. LALLY: And do you recall or do you know what type of residence that is?
MS. MCCABE: Yes. It's like condos. I'm not sure exactly, but yeah.
MR. LALLY: As far as your drive from the residence in Fairview to Colin's house, did you make any stops along the way?
MS. MCCABE: No.
MR. LALLY: And about how long a drive is it from Fairview to Colin's new house?
MS. MCCABE: Seven minutes. Five minutes.
MR. LALLY: And, when you arrived there, what did you observe Colin to do?
MS. MCCABE: Got out of the car, went inside -- got the key and went inside.
MR. LALLY: And is that something as far as did you wait for him to get inside?
MS. MCCABE: Yes.
MR. LALLY: And why was that?
MS. MCCABE: I always wait for him because he has to open the first door to get inside. So I usually just wait for everyone to get inside.
MR. LALLY: And during the car ride from Fairview to Colin's house, do you recall anything specific about -- did you have a conversation with him?
MS. MCCABE: Probably. I don't remember what we were talking about.
MR. LALLY: And then following that, where did you go?
MS. MCCABE: I went home.
MR. LALLY: And, when you got home, were either of your parents home at that point?
MS. MCCABE: No.
MR. LALLY: And do you know about what time it was that you got home?
MS. MCCABE: Not exactly. I would estimate a little bit before 12:30. Around that time.
MR. LALLY: And at any point in time over the rest of the course of that evening, did you see your parents? Did you talk to your parents or anything like that?
MS. MCCABE: I know I talked to my dad on the phone when we found the dog. Other than that, no.
MR. LALLY: And so after your return home when you went to bed or you went to sleep, were your parents home at that point?
MS. MCCABE: No.
MR. LALLY: And about how much time was it between the time when you got home around 12:30 or so and when you went to sleep?
MS. MCCABE: Not long. I don't know.
MR. LALLY: Now, turning your attention to the following day, at some point you woke up, correct?
MS. MCCABE: Yes.
MR. LALLY: And were your parents home at that point?
MS. MCCABE: Yes.
MR. LALLY: And were both of your parents home at that point?
MS. MCCABE: Yes.
MR. LALLY: And do you know about what time it was that you woke up the next morning?
MS. MCCABE: No, I do not.
MR. LALLY: Now, Ms. McCabe, at some point in August of 2023, did you have occasion to meet with some troopers from the state police?
MS. MCCABE: Yes. I'm not sure what time but on a Zoom.
MR. LALLY: And was that one trooper or more than one trooper or something else?
MS. MCCABE: I believe two. I'm not sure.
MR. LALLY: And do you recall any of the names of any of those troopers?
MS. MCCABE: Yuri maybe was one of them. I'm not sure.
MR. LALLY: I'm sorry. I'm just going to wait for the truck to go by. Now, ma'am, following that meeting that you had with the troopers from the state police, what, if anything, did you provide to them from your phone?
MS. MCCABE: Text messages with Colin, maybe pictures. I don't know. Definitely the text messages.
MR. LALLY: And, before we get to that, just as far as your phone, what kind of phone did you have at that time, if you know?
MS. MCCABE: I believe an iPhone 14 Pro Max, maybe.
MR. LALLY: I should have been more specific as far as a time. But the iPhone you're talking about as far as the Pro Max, was that in January of 2022 or August of 2023?
MS. MCCABE: That was in August.
MR. LALLY: And, between January 2022 and August of 2023, did you have the same phone throughout that time period?
MS. MCCABE: I'm not sure. I believe I upgraded. Yeah.
MR. LALLY: And, when you upgraded your phone, what, if any, data sort of carried over from the old phone to the new phone, if you know?
MS. MCCABE: Everything.
MR. LALLY: So as far as chats or text messages or phone contacts, things like that, all of that transferred from one phone to the new phone?
MS. MCCABE: Correct.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: So first, ma'am, I'm going to show you a two- page document and ask you to take a look at it and look up when you're done.
MS. MCCABE: Yes.
MR. LALLY: And do you recognize that, ma'am?
MS. MCCABE: Yes.
MR. LALLY: What do you recognize that to be?
MS. MCCABE: This is from my phone and my text messages.
MR. LALLY: And the second page? What is that?
MS. MCCABE: Colin's contact information.
MR. LALLY: Are those screenshots that you took from your phone and provided to the troopers in August in 2023?
MS. MCCABE: Uh-huh. Yes.
MR. LALLY: May I approach again, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as --
MR. YANNETTI: Objection. I'd ask to be heard.
JUDGE CANNONE: Okay. Come on up.
(Whereupon, there was a sidebar conference as follows:)
MR. YANNETTI: Your Honor, I'm objecting on multiple grounds. One is that this is rank hearsay. It's being offered for the truth of the matter asserted. Secondly and equally important is that these screenshots are unreliable. We don't know that they are what they purport to be. In other words, there are times listed there but, again, being offered for the truth of the matter asserted, which by an iPhone can be changed very easily by going into settings. So we don't have a forensic extraction of the phone. The police did not ask to actually take her phone and confirm that those times are actually accurate. They chose not to do that. And, given that her phone is gone now, they robbed us of any ability to challenge those times through forensic methods. So I believe these are inadmissible in the form that they are in. If the Court is inclined to overrule my objection, I would ask for a voir dire to be done before these are admitted.
JUDGE CANNONE: Okay. What do you say, Mr. Lally?
MR. LALLY: Your Honor, what I say is that the witness on the stand is a participant in the conversations and can authenticate those conversations under Purdy. Secondly, I would say as far as any questions that counsel has to them go to the weight and not the admissibility.
JUDGE CANNONE: How long of a voir dire do you need?
MR. YANNETTI: Ten, fifteen minutes.
JUDGE CANNONE: All right. I'll give you a short voir dire.
MR. LALLY: Your Honor, if I may, just for the sake of not coming back up --
JUDGE CANNONE: Yes.
MR. LALLY: -- I also intend to introduce those two. They are also screenshots that she took for photographs of Colin Albert from February 11th. Essentially, what these are is two separate photographs from the defense that show the Alberts' home. She was present during this event. So she can authenticate that's what Colin Albert looked like on February --
JUDGE CANNONE: Who is the one --
MR. LALLY: That's Nicole Albert.
JUDGE CANNONE: All right. So we will have a voir dire on it.
JUDGE CANNONE: Jurors, I'm going to ask you to step out for just a few minutes.
(Whereupon, the sidebar conference concluded and the jury is escorted from the courtroom for a brief recess.)
JUDGE CANNONE: Madam Court Reporter, would you please mark that for identification.
MR. YANNETTI: Your Honor, may I be excused for one second just to pick up something in the hallway?
JUDGE CANNONE: Okay.
(Whereupon, screenshots of texts were entered and marked Exhibit "AA" for Identification.)
COURT REPORTER: "AA" for identification, Your Honor.
JUDGE CANNONE: Thank you. And the next two, if they would be marked separately, please.
(Whereupon, photograph was entered and marked Exhibit "BB" for Identification.)
(Whereupon, photograph was entered and marked Exhibit "CC" for Identification.)
COURT REPORTER: "BB" and "CC."
JUDGE CANNONE: Thank you. The lawyers are going to get to ask you a few questions now before we go any further in front of the jury.
MS. MCCABE: Okay.
JUDGE CANNONE: So, Mr. Lally, you can take the exhibits back and you can question this witness, and then Mr. Yannetti can cross her.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes. VOIR DIRE EXAMINATION
BY MR. LALLY:
MR. LALLY: So, Ms. McCabe, with reference to the two screenshots that we were just talking about before the jury left the room, those are screenshots that you took from your own phone, correct?
MS. MCCABE: Correct.
MR. LALLY: And, as far as the communications contained therein, is it your memory that those are communications that you had with Colin Albert --
JUDGE CANNONE: Why don't you ask her what they are and not lead.
MR. LALLY: Sure.
BY MR. LALLY:
MR. LALLY: Those screenshots as far as the communications, what are they, when were they done?
MS. MCCABE: On a later date. Is that what you're asking? Sorry.
MR. LALLY: So I'm asking as far as the actual content of the conversations, when did those conversations occur?
MS. MCCABE: January 28th.
MR. LALLY: And you were a participant in those conversations?
MS. MCCABE: Yes.
MR. LALLY: And, as far as the content of those conversations, is it your memory that the content reflected there is accurate as to what the content of the conversations were between yourself and Colin Albert the evening of the 28th, into the 29th?
MS. MCCABE: Yes.
MR. LALLY: And Colin Albert was somebody that you were familiar with, correct?
MS. MCCABE: Yes.
MR. LALLY: And beyond what's contained within these screenshots, you had had other text communications with Colin Albert using the same contact information?
MS. MCCABE: Correct.
MR. LALLY: And how is it that you knew or were aware that the person or the contact that you were talking to was Colin Albert? Let me ask you this.
MS. MCCABE: His phone?
MR. LALLY: With reference to that contact you had in your phone for Colin Albert, had you called that number before?
MS. MCCABE: Yes.
MR. LALLY: And, when you called the number, who answered?
MS. MCCABE: Colin.
MR. LALLY: And, when you had texted Colin on prior occasions using that contact information, did you have any -- you have a text communication. Did you have any subsequent conversation in relation to the content of those text communications?
MS. MCCABE: Sorry. Can you rephrase that?
MR. LALLY: Sure. And I'm not just asking specifically about these. What I'm saying is you had contact information in your phone for Colin Albert, correct?
MS. MCCABE: Yes.
MR. LALLY: And, on any of those prior occasions when you had texted that contact information you put in as Colin Albert into your phone -- and, just to be clear, you were the one who input that number as Colin Albert in your phone?
MS. MCCABE: Yes.
MR. LALLY: And so on this or any prior occasions when you had contact via text, that contact of Colin Albert in your phone, following those text communications, did you have any conversation with Colin Albert relating to the content of those communications?
MS. MCCABE: Sorry. I'm confused.
MR. LALLY: It's my fault. It's not yours.
MS. MCCABE: No. That's fine.
JUDGE CANNONE: Make it simpler. Let's try and get through this voir dire, Mr. Lally.
MR. LALLY: Sure.
BY MR. LALLY:
MR. LALLY: At some point during the course of your -- how long had you had Colin's contact information in your phone?
MS. MCCABE: For awhile. Years.
MR. LALLY: And, over the course of those years, had you had conversations related to content in text in person?
MS. MCCABE: Yes.
MR. LALLY: And, as far as the content that you had texted to that number you associated or input as Colin Albert, was Colin Albert aware of the content of those text communications?
MS. MCCABE: Correct. Yes.
MR. LALLY: Okay. And, within the specific screenshot of the text communications from that evening, as far as your recollection of that particular evening are the times that are associated with those accurate as far as your memory?
MS. MCCABE: Yes.
MR. LALLY: And did you do anything to alter the times that are associated with those text communications prior to taking a screenshot and giving it to the state police?
MS. MCCABE: No.
MR. LALLY: Now, turning to the other two screen shots that you took, those are photographs, correct?
MS. MCCABE: Did I take them?
MR. LALLY: I'm just asking what they are.
MS. MCCABE: Oh. Picture of -- both pictures of Colin. One is with my aunt. The other is just him and some other people blocked off.
MR. LALLY: And do you know when and where those were taken?
MS. MCCABE: Yes. They were taken at the Alberts' house. One of their sons were coming home from the Marines. So it was like a welcome home party.
MR. LALLY: And when was that in relation to the evening of January 28th to 29th?
MS. MCCABE: A few weeks after.
MR. LALLY: And that sort of coming home celebration for your cousin who is coming home for the Marines, were you there for that?
MS. MCCABE: Yes.
MR. LALLY: And so as far as your observation of those photographs, is what's depicted of Colin Albert, is that a fair and accurate portrayal of what he looked like on February 11th?
MS. MCCABE: Yes.
MR. LALLY: I have nothing further.
JUDGE CANNONE: All right. Mr. Yannetti?
MR. YANNETTI: Thank you, Your Honor.
BY MR. YANNETTI:
MR. YANNETTI: Good afternoon, ma'am.
MS. MCCABE: Good afternoon.
MR. YANNETTI: How long have you had an iPhone? I'm not talking about your current iPhone but just iPhones in general.
MS. MCCABE: For years.
MR. YANNETTI: More than five years?
MS. MCCABE: Yes.
MR. YANNETTI: And how old are you now?
MS. MCCABE: I'm 20.
MR. YANNETTI: Twenty. And when did you get your first iPhone if you remember?
MS. MCCABE: I don't remember.
MR. YANNETTI: Twelve? Thirteen?
MS. MCCABE: Yeah.
MR. YANNETTI: Around there?
MS. MCCABE: Middle school-ish.
MR. YANNETTI: So maybe seven or eight years? Is that a decent estimate?
MS. MCCABE: Yes.
MR. YANNETTI: And, in those seven or eight years, you have learned how to operate an iPhone, the various features that they have and the apps that you can download and use, correct?
MS. MCCABE: Correct.
MR. YANNETTI: And your current iPhone has a number of apps on it, correct?
MS. MCCABE: Correct.
MR. YANNETTI: With regard to the text message app, you'll agree with me that that is a green icon with a white, sort of speech bubble in the middle of it?
MS. MCCABE: Yes. I believe.
MR. YANNETTI: And you know that when you click on that, it gives you a list of the text messages that you're exchanging with people, the various threads, correct?
MS. MCCABE: Correct.
MR. YANNETTI: You know that if you click on a thread, it opens up the individual text messages that you sent and received to that particular person, correct?
MS. MCCABE: Correct.
MR. YANNETTI: And you know that if you take your finger or your thumb and you hold it on one particular text that's either sent to you or from you, you can do things with that individual text, correct?
MS. MCCABE: Correct.
MR. YANNETTI: You can forward it to somebody else, right?
MS. MCCABE: Correct. I believe.
MR. YANNETTI: In the context of a conversation, you can just reply to that one particular text message, right?
MS. MCCABE: Correct.
MR. YANNETTI: And, if you do that, rather than hit the arrow button where you forward or reply, on the left side of the screen there's a trash can, correct?
MS. MCCABE: I'm not sure.
MR. YANNETTI: You know that you can delete a text from a thread, correct?
MS. MCCABE: Correct.
MR. YANNETTI: All right. And it is a trash can that you click on, right?
MS. MCCABE: Correct.
MR. YANNETTI: I'm not trying to trick you.
MS. MCCABE: No, no. I was confused. Sorry.
MR. YANNETTI: No. I understand. I don't mean to confuse you. So you know that if you click on the trash can, it gives you an option to either cancel or to delete the message, correct?
MS. MCCABE: Correct.
MR. YANNETTI: And what happens if you delete the message?
MS. MCCABE: It's deleted off of the phone.
MR. YANNETTI: Okay. So it's gone from that thread, correct?
MS. MCCABE: Correct.
MR. YANNETTI: And somebody looking at a screenshot that you take after you've deleted that message, it wouldn't be evident that that message was ever there, correct?
MS. MCCABE: Correct.
MR. YANNETTI: Now, you testified at a hearing in Boston on August 3rd of 2023, correct?
MS. MCCABE: Correct.
MR. YANNETTI: That was -- we are not with a jury present. That was a federal grand jury, correct?
MS. MCCABE: Correct.
MR. YANNETTI: And you had, by that point, by August of 2023, you no longer had the phone that you originally had on January 29th of '22, correct?
MS. MCCABE: Yes. I believe so.
MR. YANNETTI: You had gotten a new phone in December of 2022, correct?
MS. MCCABE: Okay. I'm not sure what time, but --
MR. YANNETTI: Does that sound about right?
MS. MCCABE: Yeah. I got a new phone. I believe I got a new phone.
MR. YANNETTI: Right. And, actually, the timing is not that important, just that it was before that grand jury appearance.
MS. MCCABE: Okay. Yes.
MR. YANNETTI: All right. And what did you do with the old phone when you got the new phone?
MS. MCCABE: Transferred it. Through iCloud, everything transfers over.
MR. YANNETTI: Okay. But I'm actually talking about the hardware, itself, the physical iPhone.
MS. MCCABE: Oh. Sorry. Can you repeat the question?
MR. YANNETTI: Yes. I'm sorry. Not the data on the phone. I understand that you've testified that you transferred that to the new phone. But the actual physical phone, itself, where did that go when you got the new phone?
MS. MCCABE: I'm not sure.
MR. YANNETTI: Would that have been traded in?
MS. MCCABE: Possibly.
MR. YANNETTI: You don't have it now, correct?
MS. MCCABE: I don't think, no.
MR. YANNETTI: And, as of August of 2023, you didn't have it, either, correct?
MS. MCCABE: Correct.
MR. YANNETTI: Is it fair to say that no investigator from this case ever asked you for that phone that you had on January 29th?
MS. MCCABE: Correct.
MR. YANNETTI: They never --
JUDGE CANNONE: Mr. Yannetti, can you just focus on the voir dire? All that you're doing you can cross-examine with, but on the voir dire of this.
MR. YANNETTI: Sure.
JUDGE CANNONE: I'd just like to get the jurors back in.
MR. YANNETTI: No. I understand, Your Honor. I understand. I was trying to lay a foundation, but maybe it's not necessary.
BY MR. YANNETTI:
MR. YANNETTI: So with regard to --
JUDGE CANNONE: If you need to do it, go ahead.
MR. YANNETTI: I want to accommodate the Court, Your Honor.
BY MR. YANNETTI:
MR. YANNETTI: With regard to the messages that are in a given thread, right, we've talked about the fact that you are aware that you can reply to them, an individual message, forward or delete one, correct?
MS. MCCABE: Correct.
MR. YANNETTI: You are also aware that it is possible to change the timestamp on any individual message, correct?
MS. MCCABE: No. I'm not aware of that.
MR. YANNETTI: If you go to settings and you go to general and you go to date and time, first of all, you can change the time zone of the message. Do you have your iPhone with you right now?
MS. MCCABE: Not on me.
MR. YANNETTI: It's not on you? And, in addition to being able to change the time zone, you actually can change the hour and minute to whatever you want it to be. Were you aware of that?
MS. MCCABE: No.
MR. YANNETTI: With regard to photos on your phone, you are aware that you can change the date and time of any photo in your photo app, correct?
MS. MCCABE: No.
MR. YANNETTI: There is a little -- when you go to your iPhone, there is a little "i" for information. And all you need to do -- or I think it's for info or information. All you need to do is click on that and you get a popup from the bottom that gives you the choice to alter the date and time. Did you know that?
MS. MCCABE: No.
MR. YANNETTI: Next to that date and time is the word "adjust." And that's all you have to click on, and you can change the time from 12:10 a.m. or you can change it from 12:40 a.m. to 12:10 a.m., or you can change it from 1:45 to 12:10 a.m., and it's that easy.
MS. MCCABE: Now I know. I didn't know that. I didn't do that.
MR. YANNETTI: If I may have a moment?
JUDGE CANNONE: You may.
MR. YANNETTI: That's it for the voir dire, Your Honor.
JUDGE CANNONE: Okay. So I'm going to allow this testimony in. Your argument goes to the weight of the evidence, not its admissibility. But I did, under Commonwealth versus Troche, want to give you your voir dire. Okay?
MR. YANNETTI: I appreciate it, Your Honor. Thank you, Your Honor.
JUDGE CANNONE: All right. So let's bring the jurors back in. I'd like to see counsel at sidebar while they come in. Mr. Lally?
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So what you did during the voir dire you can do with this witness. You just taught her something, I guess, so she said "now I know." So it's couched in terms of either pre-voir dire or post-voir dire. That's fine. If it's not, Mr. Lally is going to get leeway to then say that you questioned on those things.
MR. YANNETTI: Yes. I understand. Of course. I understand.
JUDGE CANNONE: Okay. All right.
MR. YANNETTI: I understand. Thank you.
JUDGE CANNONE: Thank you.
(Whereupon, the sidebar conference concluded.)
(Whereupon, the jury is escorted into the courtroom and seated in the jury box.)
MR. YANNETTI: Your Honor, I apologize profusely. I just need one more minute. I am so sorry. It is completely my fault.
(Whereupon, there was a sidebar conference as follows:)
MR. YANNETTI: Your Honor, the only thing I was going to bring up -- I understand the Court's ruling. We object but I accept it, obviously. But, with regard to the photos, Your Honor, there is no need to have that date underneath the photo, itself.
JUDGE CANNONE: I didn't even notice that it was on there.
MR. YANNETTI: I am just asking that that be cropped off. If he wants the photo in, she can testify to the date. That's hearsay. That should not be part of the photo.
JUDGE CANNONE: Do you care?
MR. LALLY: I don't care. But, again, I mean, she was there for it and can testify to the date that the photo was taken.
MR. YANNETTI: Well, that's what I just said. As long as it's not on the exhibit, itself.
JUDGE CANNONE: Okay. So we'll remove it from the exhibit. Is it on a slide that you probably are going to put up on the screen?
MR. LALLY: It is, but I can advise Ms. Gilman she can put it on on the screen on the laptop and enlarge it just for the photo and then somehow --
MR. YANNETTI: Yes, as long as it's not visible to the jury and we can redact it afterward.
JUDGE CANNONE: One person at a time. Okay. She can do that. I'll give you a minute to let her do that.
MR. YANNETTI: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Mr. Lally, I have an instruction to give.
MR. LALLY: Yes.
JUDGE CANNONE: Jurors, remember I've told you this before. Before you consider any electronic communication in your deliberations, you must find first that it is more likely true than not that the person who authored or sent the communication was, in fact, either Colin Albert or Ms. Alli McCabe. If you do not find it's more likely true than not that Ms. McCabe or Mr. Albert was the person who authored or created or transmitted the electronic communication, then you cannot consider that communication in your deliberations. With that, Mr. Lally.
MR. LALLY: Thank you, Your Honor. And, Your Honor, the first two pages that's been marked "AA," the Commonwealth would seek to introduce and admit as the next exhibit.
JUDGE CANNONE: Okay. Those may be admitted.
MR. YANNETTI: Subject to our conversation at sidebar.
JUDGE CANNONE: Yes.
COURT REPORTER: Exhibit 81.
(Whereupon, screenshots of texts was entered and marked Exhibit No. 81 in Evidence.)
MR. LALLY: And, Your Honor, if I may just approach to return it to the witness?
JUDGE CANNONE: Sure.
BY MR. LALLY:
MR. LALLY: Now, Ms. McCabe, with reference to -- well, before we get into that, you had an iPhone at the time of January 2022; is that correct?
MS. MCCABE: Correct.
MR. LALLY: And, with respect to your friend, Colin Albert, as far as his contact information within your phone, who entered that in your phone?
MS. MCCABE: I did.
MR. LALLY: And, prior to that date of January 28th, into the 29th of 2022, had you had phone conversations where you would sort of press the button to call that number and it rang, correct?
MS. MCCABE: Correct.
MR. LALLY: And who, if anyone, answered the phone when you contacted that phone number in your phone?
MS. MCCABE: Colin.
MR. LALLY: Now, with reference to Colin and the contact in your phone, had you had prior text communications with Colin using that contact that you put in?
MS. MCCABE: Correct.
MR. LALLY: And, outside of those text communications that you had, did you have sort of physical, in-person conversations with Colin in regard to content that was within text messages that you had with that contact?
MS. MCCABE: Yes. I assume so.
MR. LALLY: And specifically on that date of January 28th, into the 29th, when you arrived at the home on Fairview Road, you texted Colin that you were there?
MS. MCCABE: Yes.
MR. LALLY: And, after you texted him that, what, if anything, happened after that?
MS. MCCABE: He responded, saying, okay. And then he came out to the car.
MR. LALLY: And, Your Honor, if I may, with the Court's permission just publish the text communication to the jury on the screen?
JUDGE CANNONE: Yes.
MR. LALLY: I'm sorry. Ms. Gilman, if you could scroll down a bit.
BY MR. LALLY:
MR. LALLY: Now, what's up on the screen, Ms. McCabe, is that what you have before you as the exhibit?
MS. MCCABE: Yes.
MR. LALLY: And looking at that, there's sort one side has text and one side has a blue bubble; is that correct?
MS. MCCABE: Yes.
MR. LALLY: And, if you know, who was communicating with who as far as the sort of plain text outside of the --
MS. MCCABE: Colin and I? Is that what you're asking?
MR. LALLY: So what I'm asking you is who is the blue bubble and who is the other?
MS. MCCABE: Oh. Sorry. I'm the blue bubble and he is the gray/whitish bubble.
MR. LALLY: And from sort of the top of what's depicted on the screen, can you read the text that you received and the time that you received it?
MS. MCCABE: Yes. 11:54. And then I responded at 11:55.
MR. LALLY: And what did Colin say at 11:54?
MS. MCCABE: You can get me now if easier.
MR. LALLY: And what did you respond?
MS. MCCABE: Okay. I am driving people home now.
MR. LALLY: And what did Colin respond to that and what time did he respond to it?
MS. MCCABE: He responded, word, get me after.
MR. LALLY: And, Ms. Gilman, if you could scroll down just a bit.
MR. LALLY: And, following the "get me after," what, if any, response did you provide to him?
MS. MCCABE: "KK," okay, and here.
MR. LALLY: And the "here" that you texted, what time does that read on the screenshot?
MS. MCCABE: 12:10 a.m.
MR. LALLY: And what, if anything, did Colin respond to your text of "here"?
MS. MCCABE: He responded at the same time, saying, okay.
MR. LALLY: Thank you.
MR. LALLY: Ms. Gilman, you can take that down. May I approach just to retrieve, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: So the next two pages, two separate pages, contain photographs; is that correct?
MS. MCCABE: Yes.
MR. LALLY: And do you recognize what's depicted in those photographs that I've just placed before you?
MS. MCCABE: Yes.
MR. LALLY: And what do you recognize those to be?
MS. MCCABE: Colin.
MR. LALLY: Well, let me ask you more specifically. So were these also screenshots that you provided to troopers of the state police in August of 2023?
MS. MCCABE: Yes. I believe so.
MR. LALLY: And, in regard to those two photographs, do you know when and where those photographs were taken?
MS. MCCABE: They were taken February 11th at the Alberts', Nicole and Brian's, house.
MR. YANNETTI: Objection. I move to strike.
JUDGE CANNONE: No. I'm going to let her testify when they were taken.
BY MR. LALLY:
MR. LALLY: And so February 11th of what year, ma'am?
MS. MCCABE: 2022.
MR. LALLY: So a few weeks after January 28th, 29th, correct?
MS. MCCABE: Yes.
MR. LALLY: And were you present at the Alberts' house on the evening of February 11th when they were taken?
MS. MCCABE: Yes.
MR. LALLY: And what was the purpose of yourself and/or Colin or anybody being over at the Alberts' house on that date?
MS. MCCABE: One of Nicole and Brian's sons was coming home from the Marines. So there was like a welcome home party with family and friends.
MR. LALLY: And that is your cousin, Jack; is that correct?
MS. MCCABE: Correct.
MR. LALLY: And, as far as what's contained in those photographs, is that a fair and accurate portrayal as far as your memory of what Colin looked like on February 11th?
MS. MCCABE: Correct.
MR. LALLY: Your Honor, may I approach again?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next two exhibits.
MR. YANNETTI: Again, subject to our discussion.
JUDGE CANNONE: Sure. Yes. Those are admitted.
(Whereupon, photograph was entered and marked Exhibit No. 82 in Evidence.)
(Whereupon, photograph was entered and marked Exhibit No. 83 in Evidence.)
COURT REPORTER: Exhibits 82 and 83.
BY MR. LALLY:
MR. LALLY: Ma'am, I'm just returning those to you. And, first, I would direct your attention to what's been now marked as Exhibit 82.
MR. LALLY: Ms. Gilman, if -- with the Court's permission, may I publish those to the jury at this time, as well?
JUDGE CANNONE: Yes.
MR. LALLY: Your Honor, may I just have a moment?
JUDGE CANNONE: Yes.
MR. LALLY: Ms. Gilman, if you could, just enlarge that a bit.
BY MR. LALLY:
MR. LALLY: Do you recognize what it is now up on the screen is what you have before you as Exhibit 82?
MS. MCCABE: Yes.
MR. LALLY: And, if you could, just describe to the jury sort of what we are looking in this photograph. Who is depicted in this photograph?
MS. MCCABE: Colin and my Auntie Coco.
MR. LALLY: And your Auntie Coco is also Nicole Albert; is that correct?
MS. MCCABE: Yes. Nicole.
MR. LALLY: And if I could direct your attention to the next exhibit before you, Exhibit 83.
MR. LALLY: And, Ms. Gilman, if you could pull that up on the screen? And, Ms. Gilman, if you could enlarge it just a bit.
MR. LALLY: And, again, what's up on the screen, is that what you have before you as Exhibit 83?
MS. MCCABE: Yes.
MR. LALLY: And this is the same evening; is that correct?
MS. MCCABE: Correct.
MR. LALLY: And do you know where in the house this photograph was taken?
MS. MCCABE: I believe they call it their library, maybe. It's the last -- it's the room in the back.
MR. LALLY: And, as far as what's contained in this photograph in reference to your friend, Colin Albert, as far as his face, his arms, his hands, is that a fair and accurate portrayal of what he looked like on February 11th?
MS. MCCABE: Yes.
MR. LALLY: Thank you very much.
MR. LALLY: Ms. Gilman, you can take that down. Your Honor, may I approach one more time just to retrieve?
JUDGE CANNONE: Yes.
MR. LALLY: Thank you, ma'am. I have no further questions, Your Honor.
JUDGE CANNONE: Okay. Mr. Yannetti?
MR. YANNETTI: Thank you.