Commonwealth v. Read — Trial ArchiveRyan Nagel — Direct/Cross
655 lines(Whereupon, there was a sidebar conference as follows:)
MS. LITTLE: Just very briefly, if you don't mind. I just didn't want to run out of the courtroom.
JUDGE CANNONE: No. You can run out of the courtroom at any time.
MS. LITTLE: Okay.
JUDGE CANNONE: But did you want to take the morning recess or is this something that might take more than a few minutes?
MS. LITTLE: No. It will just take a minute, as long as I'm allowed to leave you guys.
JUDGE CANNONE: Okay.
MS. LITTLE: Thank you.
JUDGE CANNONE: That was it.
MR. JACKSON: Okay. Got it.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: All right, Mr. Lally. Your next witness?
MR. LALLY: Yes, Your Honor. The Commonwealth calls Mr. Ryan Nagel to the stand.
JUDGE CANNONE: Mr. Jackson and Mr. Yannetti, are you prepared to go forward with Ms. Little's absence with Mr. Nagel?
MR. JACKSON: Yes, Your Honor.
JUDGE CANNONE: Okay.
Whereupon, RYAN NAGEL having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: Okay. Whenever you are ready, Mr. Lally.
MR. LALLY: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good morning, sir.
MR. NAGEL: Good morning.
MR. LALLY: Could you please state your name and spell your last name for the jury, please?
MR. NAGEL: Ryan Nagel, N-A-G-E-L.
MR. LALLY: And, Mr. Nagel, where do you live?
MR. NAGEL: I live in Canton.
MR. LALLY: And how long have you lived in Canton?
MR. NAGEL: Thirty years.
MR. LALLY: And who, if anyone, do you live in Canton with?
MR. NAGEL: I live with my girlfriend now and her son.
MR. LALLY: Prior to that, who, if anyone, did you live with.
MR. NAGEL: My parents and my brother and sister.
MR. LALLY: And you have two siblings, a brother and a sister?
MR. NAGEL: Correct.
MR. LALLY: And are you the oldest?
MR. NAGEL: Yes.
MR. LALLY: And your sister's name is what?
MR. NAGEL: Julie.
MR. LALLY: Now -- and do you work, sir?
MR. NAGEL: Yes, I do.
MR. LALLY: And what do you do for work?
MR. NAGEL: I'm a union tin knocker, which is HVAC.
MR. LALLY: And how long have you been doing that?
MR. NAGEL: About 12 years.
MR. LALLY: Now, sir, if I could turn your attention to January 28th into January 29th of 2022. Do you recall that?
MR. NAGEL: I do.
MR. LALLY: Do you recall what days of the week they were?
MR. NAGEL: I believe it was a weekend.
MR. LALLY: At some point, do you recall going out on that evening?
MR. NAGEL: Yes, I do.
MR. LALLY: And where did you go and who, if anyone, did you go out with?
MR. NAGEL: I went to C.F. McCarthy's to begin the night with two of my -- well, now my ex-girlfriend and my friend, Rick, to meet up with my sister.
MR. LALLY: And so your girlfriend at the time, what was her name?
MR. NAGEL: Heather Maxon.
MR. LALLY: And your friend, Ricky, what is his last name?
MR. NAGEL: D'Antuono.
MR. LALLY: And you and your girlfriend at the time, Ms. Maxon, how long had the two of you been dating at that point?
MR. NAGEL: Probably about a year, year and a half.
MR. LALLY: And your friend, Ricky, how long have the two of you been friends?
MR. NAGEL: Oh, probably since sixth grade. So a pretty long time.
MR. LALLY: And you went to C.F. McCarthy's. Is that an establishment you're familiar with?
MR. NAGEL: Yes, sir. It's in the center of town.
MR. LALLY: Been there plenty of times before?
MR. NAGEL: Yes, sir.
MR. LALLY: And did you go just sort of the three of you or did you meet someone else there?
MR. NAGEL: I met my sister there.
MR. LALLY: And where within the bar did you go?
MR. NAGEL: I believe at a table, to my acknowledgment or what I remember, yeah.
MR. LALLY: Do you recall what side of the bar you were on or where you were?
MR. NAGEL: I believe I was on the left side, near the bathrooms.
MR. LALLY: So if you're walking in, on the left side toward the bathrooms?
MR. NAGEL: Correct.
MR. LALLY: And do you recall about what time it was that you got there?
MR. NAGEL: Probably -- I don't even really remember. Seven, eight, maybe.
MR. LALLY: And do you recall how it was that you got there? Like what mode of transport did you take?
MR. NAGEL: Oh, Ricky drove.
MR. LALLY: And Ricky drove his own vehicle; is that correct?
MR. NAGEL: Correct, sir.
MR. LALLY: And what kind of vehicle did Ricky have?
MR. NAGEL: I believe it was a 2018 F-150.
MR. LALLY: Do you recall the color or anything like that?
MR. NAGEL: Gray. Dark gray.
MR. LALLY: And he picked you, is that correct?
MR. NAGEL: Correct, sir.
MR. LALLY: And was Ms. Maxon with you when he picked you up?
MR. NAGEL: Yes, sir.
MR. LALLY: Now, as far as C.F. McCarthy's was concerned, you were at a bar and you were drinking; is that correct?
MR. NAGEL: Correct, sir.
MR. LALLY: Do you recall what you were drinking?
MR. NAGEL: Probably beer. That's usually what I drink.
MR. LALLY: Okay. And do you have a particular brand or anything?
MR. NAGEL: Coors Light.
MR. LALLY: And, as far as your girlfriend at the time, Ms. Maxon, do you recall what, if anything, she was drinking?
MR. NAGEL: I'll probably say beer, as well. Probably Bud Light or Mic Ultra.
MR. LALLY: And your friend, Ricky. Was he drinking, as well?
MR. NAGEL: Yeah. He had a few.
MR. LALLY: If you know, about how long were you at C.F. McCarthy's?
MR. NAGEL: Probably a few hours. Probably two, maybe three hours.
MR. LALLY: Now, following that, where did you go?
MR. NAGEL: From there, we went to -- so a friend of mine shot me a text, and we went to the Hillside, which is on the other side of town.
MR. LALLY: And you're familiar with that establishment, as well?
MR. NAGEL: Yes, sir.
MR. LALLY: When you say it's on the other side of town, about how long is the drive sort of between C.F. McCarthy's and the Hillside?
MR. NAGEL: Probably 10 minutes.
MR. LALLY: And, when you arrived there, how many friends are we talking about that you're meeting up with there?
MR. NAGEL: Just one other gentleman.
MR. LALLY: And fair to say when you get there, you have some more drinks?
MR. NAGEL: Yes, sir.
MR. LALLY: Same thing?
MR. NAGEL: Yes.
MR. LALLY: And, if you know, in total sort of through the course of the evening as you're going from one place to the other, how many beers did you have?
MR. NAGEL: Probably between five to eight, maybe, give or take. I'm not sure.
MR. LALLY: And is that a large amount or a normal amount? How would you characterize that?
MR. NAGEL: I guess for the weekend, it would probably be like normal, I guess.
MR. LALLY: And you weren't driving that night, correct?
MR. NAGEL: No, sir. No, I was not.
MR. LALLY: And about how long was it that you were at the Hillside?
MR. NAGEL: I would say I was probably there an hour-ish, give or take.
MR. LALLY: And do you know about what time you left?
MR. NAGEL: Probably around midnight.
MR. LALLY: And, when you left from there, where was it that you went?
MR. NAGEL: I went to pick up my sister, Julie, because she shot me a text, asking for a ride.
MR. LALLY: And so you were at the Hillside when you received a text from your sister, Julie, correct?
MR. NAGEL: Correct, sir.
MR. LALLY: And did she -- what, if anything, did she indicate as far as where she was or where you were going to pick her up?
MR. NAGEL: She said she was at her friend, Brian's house.
MR. LALLY: And that friend, Brian, is that someone that you're familiar with?
MR. NAGEL: Yes, sir.
MR. LALLY: Okay. And who do you know that person to be?
MR. NAGEL: Just my sister's best friend since they were kids.
MR. LALLY: And I'm sorry. Do you know what his last name is?
MR. NAGEL: Oh. Albert.
MR. LALLY: And his house, had you been there before?
MR. NAGEL: I've driven by it a few times, yes.
MR. LALLY: Is that somewhere you had picked your sister up from on prior occasions?
MR. NAGEL: Yes, sir.
MR. LALLY: Again, as far as when you leave from the Hillside and you're going to this address, did you know what the address was or did you have to ask your sister for it?
MR. NAGEL: No. I already knew where the house was.
MR. LALLY: Did you know specifically what the address was or you just knew generally where it was?
MR. NAGEL: I didn't know the address. I knew the street name but I didn't know the number.
MR. LALLY: And what did you know the street name to be?
MR. NAGEL: Fairview.
MR. LALLY: And, as you're -- so you exit the Hillside, get in the truck. Who is in the truck at this point?
MR. NAGEL: Ricky is driving. I'm in the passenger seat, and Heather is in the back seat.
MR. LALLY: And the back seat, as far as Ricky's truck is concerned, can you describe sort of what that is?
MR. NAGEL: It was like a jump seat. It's a crew cab. So it's got like suicide doors on the back.
MR. LALLY: And by "suicide doors," you mean they sort of open up in sort of like a triangle? Is that --
MR. NAGEL: Yes, sir.
MR. LALLY: Now, about how long was it after you received the text from your sister to the time that you sort of jump in the truck and start to go over to Fairview?
MR. NAGEL: Like 40 minutes or so. We sort of took our time. She said she didn't -- like she wasn't saying, come now. She just said, you know, when you get a second, can you come pick me up and bring me home.
MR. LALLY: And, if you know, about how long a drive is it from the Hillside to Fairview?
MR. NAGEL: Five minutes. Seven minutes, maybe.
MR. LALLY: And, as you're driving along as far as the address is concerned, is that something that you gave to Ricky as far as a GPS, or were you giving him sort of verbal directions?
MR. NAGEL: Verbal directions.
MR. LALLY: And do you recall what you sort of said as far as where to go?
MR. NAGEL: Yes, sir.
MR. LALLY: And what was that, sir?
MR. NAGEL: Like the direction we went, you mean? Like the street?
JUDGE CANNONE: I think we can move beyond that, Mr. Lally.
BY MR. LALLY:
MR. LALLY: What I'm trying to ask, sir, is as you're approaching Fairview, do you recall which side of Fairview or how you approached Fairview?
MR. NAGEL: I was coming down Cedarcrest. So Fairview would be on my left.
MR. LALLY: And, as you're coming down Cedarcrest with Fairview on your left, what, if anything else, did you observe sort of in front of the truck?
MR. NAGEL: I noticed a car coming up the hill towards us.
MR. LALLY: And can you describe the other car that you saw coming up the hill?
MR. NAGEL: It was a black SUV.
MR. LALLY: And was that a black SUV that you were familiar with or anything like that or --
MR. NAGEL: No. I really --
COURT REPORTER: I didn't get the end of the question, please?
MR. NAGEL: I'm sorry.
BY MR. LALLY:
MR. LALLY: Sir, if you could -- and I know it's difficult. But if you could just wait until I finish the --
MR. NAGEL: Yup. Sorry, sir.
MR. LALLY: -- question just so the stenographer can record it. I'm sorry. So as you were coming up and you see this black SUV, did you recognize it as something you had seen before?
MR. NAGEL: No, sir.
MR. LALLY: And, when it's -- so you're approaching at the same time; is that correct?
MR. NAGEL: Yeah. Just about, yes.
MR. LALLY: And, with regard to Fairview being on the left, what, if anything, had Ricky done with respect to the vehicle to signal the left turn?
MR. NAGEL: He put his left blinker on.
MR. LALLY: And that other vehicle that was coming in the opposite direction, what, if anything, did you observe as far as their directional?
MR. NAGEL: They had their right directional on.
MR. LALLY: And so as a result of that, what, if anything, did Ricky do?
MR. NAGEL: He flashed his headlights to let the person go because they were going to beat us, obviously, to the turn. So...
MR. LALLY: And, when they were coming in, so they went first; is that correct?
MR. NAGEL: Yes, sir.
MR. LALLY: And Ricky's truck then proceeds behind that black SUV onto Fairview?
MR. NAGEL: Yes, sir.
MR. LALLY: And, as you're coming up to the house, to Brian Albert, Jr.'s house, where did that black SUV go?
MR. NAGEL: Probably about kind of right in front of the house, I could say.
MR. LALLY: So it came up to the same house that you were going to; is that correct?
MR. NAGEL: Correct, sir. Yes.
MR. LALLY: And, as far as the vehicles, being the black SUV and Ricky's truck, are they facing in the same direction?
MR. NAGEL: Yes, sir.
MR. LALLY: And which side of the truck that you're in is facing towards the house, Brian's house?
MR. NAGEL: Say that again? I'm sorry.
MR. LALLY: Sure. It's a very poorly put question. So with regard to the truck that you're in --
MR. NAGEL: Yes.
MR. LALLY: -- is it the driver's side, the passenger side or something else that's facing the house?
MR. NAGEL: Passenger side. So my side.
MR. LALLY: So your side and the passenger side, facing the house?
MR. NAGEL: Yes, sir.
MR. LALLY: And where did Ricky stop the truck in relation to the house?
MR. NAGEL: Right in front of the driveway.
MR. LALLY: And, when you stop in front of the driveway, about how far away from you is the black SUV that you saw?
MR. NAGEL: About a car or a car length in front of me. A car length and a half in front of me.
MR. LALLY: And, as you're sitting behind that, what, if anything, was in between the truck, Ricky's truck, and the black SUV in front of you?
MR. NAGEL: There was nothing, sir.
MR. LALLY: And, at any point in time that you were there in front of the house, did you observe anybody get out of that truck? I mean get out of the SUV. I'm sorry.
MR. NAGEL: No, sir. I did not.
MR. LALLY: And, when you arrived there, what, if any, communication do you have with Julie inside the house in reference to your presence?
MR. NAGEL: I texted her when we were coming down from Cedarcrest, saying, hey, I'm almost here, you know, get ready to come out.
MR. LALLY: And about how long was it between the time that Ricky parks in front of the driveway and the time that your sister comes out?
MR. NAGEL: Probably about two minutes.
MR. LALLY: And do you recall seeing her exit from the house?
MR. NAGEL: Yes, I do.
MR. LALLY: And how did she sort of exit and how did she come up to the truck?
MR. NAGEL: You mean like what door?
MR. LALLY: What door and how did she sort of traverse --
MR. NAGEL: I'd say the side door next to the garage.
MR. LALLY: And how was it that she -- did she come across the lawn, down the driveway? How did she come up to it?
MR. NAGEL: I guess she crossed the lawn a little bit but obviously walked down the driveway because we were at the end of it.
MR. LALLY: At this time when you're in front of the house on Fairview, what was the weather doing at that point?
MR. NAGEL: It just started to snow, sir.
MR. LALLY: And, as far as accumulation on the road or the grass or anything, could you see anything like that?
MR. NAGEL: Very little. There wasn't too much on the ground yet.
MR. LALLY: And, as far as when your sister was walking down from the house to the truck, could you see anything as far as, like footprints in the snow or anything like that at that point?
MR. NAGEL: No. I was not really looking for that.
MR. LALLY: So not anything that you noticed?
MR. NAGEL: No. No, sir.
MR. LALLY: So she comes to the truck. How is it that you spoke to her? Did you roll down the window, open the door? How did that work?
MR. NAGEL: I opened the door just because I assumed she was going to jump in the back seat. And she goes, oh, would you guys like to come inside? I looked over at Ricky. And he goes, eh, maybe we should call it a night, because obviously we were out for a long time. So she goes, I'm going to stay a little longer. So she shut the door. And I watched her go in the house, and that was it.
MR. LALLY: And from the time that your sister came out and the time that she went back in the house, about how long a period of time was that?
MR. NAGEL: Maybe 30, 45 seconds, tops.
MR. LALLY: So a relatively short amount of time?
MR. NAGEL: Yeah. It was kind of like an in-and-out thing.
MR. LALLY: Now, as far as the black SUV in front of you, what, if anything, did you observe about movement of that vehicle at any point?
MR. NAGEL: I noticed that the brake lights -- the only reason that I noticed is because the brake lights were on, and I'd say it moved up maybe another car length in front of us from where it was.
MR. LALLY: And when was that in relation to when you were parked out there, waiting for Julie and talking to Julie? When did that occur?
MR. NAGEL: Probably simultaneously when she came out the door.
MR. LALLY: So it moved up a little bit further, about a car, car and a half?
MR. NAGEL: Further away from us.
MR. LALLY: Facing in the same direction?
MR. NAGEL: Yes, sir.
MR. LALLY: And was that the only time you observed the vehicle move up or did it move up again?
MR. NAGEL: No. That was the only time I saw it move.
MR. LALLY: And, when you say "the brake lights," what part of the brake lights were you looking at?
MR. NAGEL: The only reason I noticed it was the brake lights and not the regular parking lights is because the third light above was on.
MR. LALLY: And so above, sort of in the center of the back of the vehicle?
MR. NAGEL: Correct, sir. Yes.
MR. LALLY: Now, as far as any of the other lights or any other part of the vehicle, what, if any, damage did you observe on the vehicle at that time?
MR. NAGEL: I did not observe. It was dark out.
MR. LALLY: And, as far as when the vehicle moved up from one position to the next position, what, if anything, did you observe in the roadway as far as tire marks in the snow or anything like that?
MR. NAGEL: I didn't really observe any other tracks in the snow besides the car in front of us.
MR. LALLY: Okay. So you did observe tire marks from the car in front of you?
MR. NAGEL: Yes.
MR. LALLY: Okay. But no other tire marks that you saw?
MR. NAGEL: No, sir.
MR. LALLY: Okay. And, as far as around the vehicle, at any point in time, did you observe anybody exit the vehicle or be outside of the vehicle or anything like that?
MR. NAGEL: No, sir. No, I did not.
MR. LALLY: And did you see anybody go from the vehicle to the house?
MR. NAGEL: No, sir.
MR. LALLY: And did you see any footprints in the snow or anything like that around the vehicle?
MR. NAGEL: No, mainly because, obviously, it was late at night and I wasn't really looking for any of that.
MR. LALLY: Now, as far as your sister when she comes out to the truck outside, how would you describe -- did she seem overly intoxicated to you?
MR. NAGEL: It seemed like she had a few.
MR. LALLY: Was she slurring her words or stumbling as she was walking?
MR. NAGEL: No, sir.
MR. LALLY: Let me ask, from the time that you came down -- you came down from Cedarcrest; is that right?
MR. NAGEL: Correct, sir. Yes.
MR. LALLY: So from the time that you came down from Cedarcrest, the black SUV is in front of your vehicle sort of the entire time, correct?
MR. NAGEL: From like the point I turned onto Cedarcrest, you mean?
MR. LALLY: Yes.
MR. NAGEL: No. The only time I saw the vehicle was when we probably got 100 feet from Fairview.
MR. LALLY: And I'm sorry. It's a poorly put question. What I'm asking is after you turn from Cedarcrest onto Fairview, that vehicle is in front of you the entire time you're there?
MR. NAGEL: Yes, sir. Yes.
MR. LALLY: So you watch your sister, Julie, go back up to the house; is that correct?
MR. NAGEL: Yes, sir. I did.
MR. LALLY: Basically to make sure she got inside okay?
MR. NAGEL: Yes, sir.
MR. LALLY: And did you observe her go inside the house?
MR. NAGEL: I did. Yes, sir.
MR. LALLY: And, after she gets inside the house, what, if anything, did Ricky do with the truck?
MR. NAGEL: He pulled out to go around the SUV in front of us and then to go home.
MR. LALLY: And, as far as pulling out, as far as sort of the distance between the truck that you're in and the SUV that is in front of you, did Ricky put it in reverse and then have to like maneuver around, or could he just sort of pull away from the curb?
MR. NAGEL: He just pulled away.
MR. LALLY: And, as he is going by the dark SUV, what, if anything, did you observe with reference to that?
MR. NAGEL: I observed that there was a person inside the car with an interior light on.
MR. LALLY: And that would be sort of a dome light; is that right?
MR. NAGEL: Correct, sir. Yes.
MR. LALLY: Could you see where the dome light was as far as in the left, right or center of the vehicle?
MR. NAGEL: It was in the center.
MR. LALLY: And can you describe the person that you saw? First of all, where were they in the car?
MR. NAGEL: They're in the driver's seat.
MR. LALLY: And can you describe what the person looked like?
MR. NAGEL: It was a woman.
MR. LALLY: And how do you know that it was a woman?
MR. NAGEL: Had long hair.
MR. LALLY: Do you know what color the hair was?
MR. NAGEL: No, I do not. I wasn't really paying attention to it. I was kind of just watching Julie go in as we were pulling away.
MR. LALLY: So your direction was to the house as you were watching Julie go in and Ricky is pulling away sort of simultaneously?
MR. NAGEL: Yes, sir.
MR. LALLY: So that's why you're looking over in that area of the house?
MR. NAGEL: Correct.
MR. LALLY: And the woman that you see in the driver's seat of the vehicle, could you see her lips moving as if she was talking or anything like that?
MR. NAGEL: No. I wasn't really paying attention to that.
MR. LALLY: And, as far as what, if anything, did you observe her to be doing or how was she seated?
MR. NAGEL: It seemed like she was looking straight ahead with her hands at 10 and two on the steering wheel.
MR. LALLY: Now, as far as the other -- what, if anything else, did you see or who, if anyone else, did you see within the interior of the vehicle at that time?
MR. NAGEL: I only saw one person at the time. I didn't -- I wasn't really looking. It just happened to be like at a glance as we drove by.
MR. LALLY: And so your head is already turned in that direction, looking to see your sister get inside the house, correct?
MR. NAGEL: Correct, sir. Yes, sir.
MR. LALLY: And so as you're going by and you make these observations of this woman in the front seat of the vehicle, what, if any, movement did you do of your body or your head to look into the vehicle?
MR. NAGEL: I just turned my head as we were driving by to watch Julie go in. And I then turn straight and look forward.
MR. LALLY: So it's not as if you were peeking forward or going back to get a better view inside the vehicle?
MR. NAGEL: No, sir.
MR. LALLY: Now, during the time that you were outside of the house, did you hear any noises or hear anything coming from that vehicle in front of you?
MR. NAGEL: No, sir. I did not.
MR. LALLY: And, as far as within your own vehicle, when Julie comes out, what, if anything, did you or Ricky do with regard to sort of the radio within it?
MR. NAGEL: Turned the music down. We had music playing.
MR. LALLY: So you had music playing as you pull up and turn it down when Julie comes out to talk?
MR. NAGEL: Correct. Yes, sir.
MR. LALLY: And, at the time that you're pulling away from the curb, had you or anybody sort of, you know, turned the radio back up?
MR. NAGEL: Not that I remember, sir, no.
MR. LALLY: Now, with reference to when Julie comes out, then you open the door so that you can talk to her; is that correct?
MR. NAGEL: Yes, sir. Yes.
MR. LALLY: And did you open just the front passenger door or the back door or both?
MR. NAGEL: I opened my passenger door. That was it.
MR. LALLY: And you were expecting her to essentially get in at that point; is that correct?
MR. NAGEL: Correct, sir. Yes, I was.
MR. LALLY: Now, when you opened the door to the pickup truck, the passenger side door, what, if anything, happened with the dome light inside the truck?
MR. NAGEL: It went on.
MR. LALLY: Now, after you go past the dark SUV, where did you go from there?
MR. NAGEL: To my house, sir.
MR. LALLY: And, as far as your house, who, if anyone, gets dropped off there in addition to yourself?
MR. NAGEL: Just me and Heather.
MR. LALLY: And Ricky then leaves from there; is that correct?
MR. NAGEL: Yes, sir.
MR. LALLY: And, from that road on Fairview to your house, about how long a ride is that?
MR. NAGEL: Five minutes.
MR. LALLY: And, when you left the roadway on Fairview, the vehicle that you had seen after initially pulls up an additional car, car and a half or so, when you left, was it in the same position after its movement that you observed?
MR. NAGEL: Yes.
MR. LALLY: Your Honor, with the Court's permission, I would just ask to publish a couple of photos for use with this witness.
JUDGE CANNONE: Okay.
MR. LALLY: Ms. Gilman, if I could have Exhibit No. 71. And I'm sorry, Your Honor. May I approach the witness just briefly?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, right before you on the table here is a laser pointer. Just basically click that button and point it if and when I ask or anybody asks you, sir. So, Mr. Nagel, up on the screen, do you recognize what is depicted in that photograph up on the screen?
MR. NAGEL: Yes, I do, sir
MR. LALLY: And what do you recognize it to be?
MR. NAGEL: Say that again?
MR. LALLY: What do you recognize it to be?
MR. NAGEL: That is the Alberts' house.
MR. LALLY: Okay. And is that a fair and accurate portrayal of what the house looked like on the night that you were there on the early morning of the 29th?
MR. NAGEL: It looks like there was more snow than when I came through.
MR. LALLY: So more snow in this photograph than when you were there, correct?
MR. NAGEL: Yes, sir.
MR. LALLY: Now, with reference to Ricky and the truck, if you could, using that laser pointer, do you see that area of the street in front of the house where Ricky parked the truck?
MR. NAGEL: I do, sir. Right about there (indicating).
MR. LALLY: And, Ms. Gilman, if I could have the next, Exhibit No. 72.
MR. LALLY: Now, the area that you were describing when you first pull up to the house and the dark SUV is in front of you, do you see that area within this photograph?
MR. NAGEL: Yes, I do, sir.
MR. LALLY: And if you could, using the laser pointer, direct the jury's attention to where in this photograph you see that?
MR. NAGEL: (Witness complies.)
MR. LALLY: And, Ms. Gilman, if I could have the next photograph, the next exhibit, excuse me, No. 73.
MR. LALLY: Again, what's up on the screen, do you recognize what's in that photograph?
MR. NAGEL: Yes, I do, sir.
MR. LALLY: And within this photograph do you see that sort of secondary position where the vehicle moves up and where you see it in that secondary position?
MR. NAGEL: Yes.
MR. LALLY: And, again, if you could, using the laser pointer, direct the jury's attention to where in the photograph you observed that?
MR. NAGEL: (Witness complies.)
MR. LALLY: Thank you, sir. And from that side of the yard, is there any sort of landmarks or anything else that you observe as sort of in the area of where that vehicle pulled up to in that secondary position?
MR. NAGEL: I know there is flagpole there and I believe it's an electrical box along with bushes.
MR. LALLY: And the flagpole? You observed that in this picture, as well?
MR. NAGEL: Yes, sir.
MR. LALLY: And, if you could, just briefly direct the jury's attention to that, as well.
MR. NAGEL: (Witness complies.)
MR. LALLY: Thanks.
MR. LALLY: Thank you, Ms. Gilman. You can take that down. If I may just have a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: No further questions for this witness, Judge.
JUDGE CANNONE: Okay. Mr. Jackson?
MR. JACKSON: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Good morning, Mr. Nagel.
MR. NAGEL: Good morning.
MR. JACKSON: A couple of questions for you. Since January 29th, have you been contacted by anybody from either the Albert family or the McCabe family about the circumstances of January 29th, 2022?
MR. NAGEL: No, I have not, sir.
MR. JACKSON: Have you been contacted by any other person other than the Albert family or the McCabe family since January 29th, 2022 about your testimony or your statements?
MR. NAGEL: About my statements, no. But, I mean, me and Ricky are best friends. And, obviously, its things brought up --
MR. JACKSON: Fair enough. I didn't mean to speak over you. So you and Ricky -- how do I pronounce his last name?
MR. NAGEL: D'Antuono.
MR. JACKSON: D'Antuono. You and Mr. D'Antuono have obviously discussed the circumstances of that night?
MR. NAGEL: Yes, sir.
MR. JACKSON: And what happened? Did that change your testimony in any way?
MR. NAGEL: No, sir. No, it did not.
MR. JACKSON: You were interviewed by a Massachusetts State Trooper on or about February 7th, 2022, correct?
MR. NAGEL: That sounds about right. Yes.
MR. JACKSON: Do you remember which state trooper that was?
MR. NAGEL: Not off the top of my head, no.
MR. JACKSON: Does the name Michael Proctor sound right?
MR. NAGEL: No, sir. I don't think so.
MR. JACKSON: You don't believe it was Michael Proctor?
MR. NAGEL: I'm not 100 percent sure. No, I'm not sure.
MR. JACKSON: Do you remember the state trooper that did interview you had a partner named Yuri Bukhenik?
MR. NAGEL: Yes.
MR. JACKSON: Does that name sound familiar?
MR. NAGEL: That sounds familiar, yes.
MR. JACKSON: During that interview, you told the -- and I'm just going to call him the trooper since you don't remember his name -- the trooper and Yuri Bukhenik that there were two other people in the car when you approached 34 Fairview?
MR. NAGEL: Say that again?
MR. JACKSON: You told those two troopers that there were two other people in the car with you, Ricky D'Antuono and Heather Maxon?
MR. NAGEL: Yes. In my vehicle, yes, sir.
MR. JACKSON: Okay. So they were well aware of the identity of Ricky D'Antuono and Heather Maxon --
MR. NAGEL: D'Antuono.
MR. JACKSON: -- D'Antuono and Heather Maxon at the time?
MR. NAGEL: Correct.
MR. JACKSON: As early as February 7th, 2022?
MR. NAGEL: Yes.
MR. JACKSON: I want to talk for a second about your approach to Fairview Road. You were coming along Cedarcrest, correct?
MR. NAGEL: Correct.
MR. JACKSON: You would have been going west-ish -- I know it's a curved road, but sort of west. If Fairview goes north and south --
MR. NAGEL: Yes, sir. Okay.
MR. JACKSON: -- you would have been going west and then turning south onto Fairview, correct?
MR. NAGEL: Correct. Yes.
MR. JACKSON: You indicated that the SUV, the dark SUV, beat your car to the intersection; is that right?
MR. NAGEL: Correct, sir.
MR. JACKSON: And because the car was ahead of you, Ricky flashed his lights as a courtesy to say, you've got the turn?
MR. NAGEL: Correct, sir.
MR. JACKSON: Because both of you were approaching the intersection but the SUV was closer?
MR. NAGEL: Correct, sir.
MR. JACKSON: You pulled up to Fairview and stopped relatively close to the driveway as you've indicated to the jurors, correct?
MR. NAGEL: Correct, sir.
MR. JACKSON: And your car was as much as three car lengths behind that SUV. Do you recall that?
MR. NAGEL: What we arrived?
MR. JACKSON: Yes.
MR. NAGEL: I would say a car, car length and a half at the time.
MR. JACKSON: Okay. Do you recall being interviewed on or about May 11th, 2023 by individuals not associated with the Commonwealth?
MR. NAGEL: A gentleman came to my door, but I did not speak to him.
MR. JACKSON: Would it refresh your recollection, do you remember talking in May of 2023 with anybody about this case?
MR. NAGEL: 2023 may have been the feds. I'm trying to --
MR. JACKSON: Just listen to my question.
MR. NAGEL: No. I understand.
MR. JACKSON: Were you talked to by anybody? Don't say who. Just tell me "yes" or "no."
MR. NAGEL: Yes. I believe so.
MR. JACKSON: Do you think it would refresh your recollection as to when that interview took place if you saw a report?
MR. NAGEL: Yes. Sure.
MR. JACKSON: Okay. May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: There is a date right up top and then a highlighted portion at the bottom. If you wouldn't mind taking a glance at that and look up to me when you've finished reviewing that.
MR. NAGEL: (Witness complies.)
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
JUDGE CANNONE: Show Mr. Lally where you showed the report.
BY MR. JACKSON:
MR. JACKSON: Does this refresh your recollection, sir, that you indicated in that interview --
JUDGE CANNONE: Just two parts. Does it refresh your recollection.
MR. JACKSON: Understood.
BY MR. JACKSON:
MR. JACKSON: Does that refresh your recollection about what you may have said?
MR. NAGEL: Yes.
MR. JACKSON: So there was an interview in May of 2023?
MR. NAGEL: Yes.
MR. JACKSON: And you did indicate some distance that you were behind the SUV in that interview?
MR. NAGEL: Yes. Well, at the beginning, it was only a car length and a half. And then probably at the end by the time we left, it was about three car lengths.
MR. JACKSON: Okay. Fair enough. So at the end, it was as much as 20 to 50 feet ahead of you?
MR. NAGEL: Give or take, yes.
MR. JACKSON: Okay. So 50 feet obviously is further than the length of this courtroom?
MR. NAGEL: Correct.
MR. JACKSON: So at a time when you were in the truck, still stationary, that SUV had pulled ahead of you at least three car lengths, correct?
MR. NAGEL: By the end, yes.
MR. JACKSON: Okay. You've already indicated, but I want to make sure I'm clear about this -- did any car pull in between Ricky's truck and the SUV when you were sitting behind the SUV?
MR. NAGEL: No, sir.
MR. JACKSON: You didn't see a Jeep with --
MR. NAGEL: No, sir.
MR. JACKSON: -- a big old snowplow on the front of it?
MR. NAGEL: No, sir. I did not.
MR. JACKSON: That car was never between your car and the SUV, was it?
MR. NAGEL: I never saw any other vehicle in between us.
MR. JACKSON: Okay. Fair enough. When you got to the location, you indicated that you had texted your sister that you were arriving; is that right?
MR. NAGEL: Correct, sir. Yes.
MR. JACKSON: How long before she came out the door to meet you at the car?
MR. NAGEL: Since I write the text, you mean?
MR. JACKSON: Correct.
MR. NAGEL: Two minutes. Basically, we were coming down Cedarcrest, and I texted her. I said, we're almost there.
MR. JACKSON: And then once you got on Cedarcrest, it's just a few seconds to drive up to the driveway at Fairview, correct?
MR. NAGEL: Yes.
MR. JACKSON: Did she text you back?
MR. NAGEL: I don't remember.
MR. JACKSON: You had your phone out?
MR. NAGEL: Yes.
MR. JACKSON: I'm guessing it was in your lap or in your hand?
MR. NAGEL: I would assume, yes.
MR. JACKSON: So for a period of time while you were inside the cab of the truck, as you were pulling up, you were monitoring your phone to determine whether or not she was going to text you back, step out of the house, whatever?
MR. NAGEL: Yes.
MR. JACKSON: Finally, your sister did come out the front door; is that right?
MR. NAGEL: Correct, sir.
MR. JACKSON: And, when she came out the front door, you were looking sort of toward the right?
MR. NAGEL: Now, when you say "front door," like there's two doors to the house.
MR. JACKSON: That's a good point. There is what's called a front door, which is a classic front door, and then a side door?
MR. NAGEL: Correct, sir. Yes.
MR. JACKSON: Which door did she come out?
MR. NAGEL: The side door next to the garage.
MR. JACKSON: Okay. So that would have been close to 90 degrees from where you were seated? You would have been looking to your right?
MR. NAGEL: Yeah.
MR. JACKSON: Not necessarily looking straight ahead?
MR. NAGEL: Correct.
MR. JACKSON: All right. So for that period of time as you're looking to your right, you see her come out the side door?
MR. NAGEL: Yes, sir.
MR. JACKSON: And you watch her approach down the driveway?
MR. NAGEL: Correct.
MR. JACKSON: So at this point, you don't know what's happening with the truck in front of you in those moments?
MR. NAGEL: No. I wasn't really paying attention to that at the time.
MR. JACKSON: Okay. You indicated that -- you said on direct examination that you believed that once she was out and at the truck that she was there for 30 or 40 seconds?
MR. NAGEL: Correct, sir.
MR. JACKSON: Do you remember actually testifying at a previous hearing in May of 2022 that it was more than five minutes that she was out by the truck?
MR. NAGEL: It was not five minutes. I'm saying the whole time that I was there, probably between two to three.
MR. JACKSON: Do you remember being asked how long, if you know, were you talking with Julie out in front of the house, and you indicating under oath, a little over five minutes, I would say?
MR. NAGEL: I mean, if you've got it, sure.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. NAGEL: Whatever you guys have.
MR. JACKSON: I'm sorry, Mr. Lally. I did it again.
JUDGE CANNONE: Can you tell Mr. Lally what page it is?
BY MR. JACKSON:
MR. JACKSON: May I have that back for two seconds?
MR. NAGEL: Yes, sir.
MR. JACKSON: Thank you. Just take a look at that highlighted portion and look up when you're finished.
MR. NAGEL: (Witness complies.)
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. JACKSON: Mr. Nagel, does that refresh your recollection?
MR. NAGEL: It seemed to, yes.
MR. JACKSON: Okay. And, in fact, was it your testimony that back in May of 2022, much closer to the event in question, that you indicated under oath that y'all were actually talking for closer to five minutes?
MR. NAGEL: The whole thing, probably, yeah.
MR. JACKSON: Okay. You indicated that you opened up the truck door; is that right?
MR. NAGEL: I opened up my passenger door. Correct.
MR. JACKSON: So that doesn't -- in an F-150, does that automatically open up the suicide door, as well?
MR. NAGEL: No, it does not. There's a handle --
MR. JACKSON: Okay.
MR. NAGEL: -- on the inside of the door to open.
MR. JACKSON: So it was just the passenger door that was open?
MR. NAGEL: Correct, sir.
MR. JACKSON: Got it. And your sister, Julie, would have been standing in the crook of that door, correct?
MR. NAGEL: Yes.
MR. JACKSON: So the door would sort of obstruct something to her right or toward the front of the truck?
MR. NAGEL: Correct. That would be the door.
MR. JACKSON: Right. How tall is the truck? Is it lifted?
MR. NAGEL: It was, yes.
MR. JACKSON: So that door is probably up above eye level?
MR. NAGEL: It wasn't that high, no.
MR. JACKSON: Okay. You talked to -- you indicated that while she was out there, you turned the music down so you could have a conversation with her?
MR. NAGEL: Correct.
MR. JACKSON: You talked about whether or not she wanted to come in the truck and leave, correct?
MR. NAGEL: Say it again?
MR. JACKSON: You talked about whether or not she wanted to get in the truck and leave?
MR. NAGEL: I asked her if she was coming. Yes.
MR. JACKSON: You also talked about whether or not you would come in the house and stay?
MR. NAGEL: Yes. She asked that. Yes.
MR. JACKSON: Okay. So there was a conversation back and forth about either you staying at 34 Fairview or her leaving 34 Fairview and getting in the car?
MR. NAGEL: Correct, sir.
MR. JACKSON: There was also a conversation about whether or not you guys needed to give her a ride then or she could get a ride on her own after you guys left if you wanted to stay?
MR. NAGEL: Correct, sir. Yes.
MR. JACKSON: And part of that conversation included even talking about whether or not maybe her mom, your mom, would come get her after you guys left?
MR. NAGEL: I would assume. Maybe. I don't know. It's two years ago.
MR. JACKSON: Right. Understood. But it's safe to say that there was a dialogue back and forth during which time you're engaged with your sister to your right. She's engaged with you, looking straight ahead in the crook of the door when it's freezing cold out?
MR. NAGEL: Correct.
MR. JACKSON: All right. And, during this time, your attention is focused on your sister, obviously?
MR. NAGEL: Yes.
MR. JACKSON: At some point, she did decide to stay?
MR. NAGEL: Yup.
MR. JACKSON: And, at that point, she then left the crook of the door. You had shut the door. I'm guessing you shut the door.
MR. NAGEL: Yes, sir.
MR. JACKSON: And then Ricky figured out, okay, we're going to get out of here and she's not coming with us.
MR. NAGEL: Correct.
MR. JACKSON: Did y'all wait long enough to see her go inside the house?
MR. NAGEL: Just gradually pulling away and watch her walk in the house.
MR. JACKSON: Okay. And that answers my next question. When you pulled away, you didn't speed away, correct?
MR. NAGEL: Correct, sir.
MR. JACKSON: You gradually, slowly pulled away and out and around the SUV that was in front of you?
MR. NAGEL: Correct, sir. Yes.
MR. JACKSON: So y'all made up the distance at that point after you had this maybe five-minute conversation with your sister. You made up the distance and got up to the SUV that was in front?
MR. NAGEL: Yes.
MR. JACKSON: All her taillights, all of the taillights, were intact?
MR. NAGEL: To my acknowledgment (sic), yes.
MR. JACKSON: I mean, as you sit here --
MR. NAGEL: May I?
MR. JACKSON: Of course.
MR. NAGEL: I mean, I'm not there to, you know, look at a car, like oh, is there any damage on a vehicle. It's 12:30 at night. Obviously, I had a few drinks. I'm not looking for that. I just noticed that the brake lights were on.
MR. JACKSON: Right. But the point is, as you sat there, and you've testified about this before, you noticed no damage on any of the taillights?
MR. NAGEL: Not to my acknowledgment (sic), no.
MR. JACKSON: Okay. There's three taillights: one to the left, one to the right and one center top?
MR. NAGEL: Correct, sir.
MR. JACKSON: And you didn't notice or note anything out of the ordinary with regard to the rear of that truck?
MR. NAGEL: No. Like I said, it was dark out.
MR. JACKSON: Okay. At any point, did you see that SUV in front of you drive up 50 or 60 feet, slam into reverse and drive backwards?
MR. NAGEL: No.
MR. JACKSON: Okay. At any point, did you see that SUV reverse and hit a pedestrian?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that. You didn't see that, right?
MR. NAGEL: No, ma'am.
BY MR. JACKSON:
MR. JACKSON: At no point did you see a person laying on the lawn?
MR. NAGEL: No. But I also wasn't looking.
MR. JACKSON: But you didn't see it?
MR. NAGEL: No.
MR. JACKSON: And you did see the truck in front of you?
MR. NAGEL: The SUV? Yes.
MR. JACKSON: Sorry. The SUV in front of you.
MR. NAGEL: Correct.
MR. JACKSON: All right. You didn't see a person standing or lying on the ground anywhere around that SUV, did you?
MR. NAGEL: No.
MR. JACKSON: And it's not just that you didn't see that SUV hit a pedestrian. That did not happen while you were sitting there, did it?
MR. LALLY: Objection.
JUDGE CANNONE: You can go ahead and answer.
MR. NAGEL: No, I did not.
BY MR. JACKSON:
MR. JACKSON: After you drove away or drove up slowly in order to drive away, you were the passenger -- or as you drove away, I should say, you were the passenger closest to the SUV as you would be passing it, correct?
MR. NAGEL: Correct, sir. Yes.
MR. JACKSON: You looked out the right window of that F-150, correct?
MR. NAGEL: Correct.
MR. JACKSON: And you could actually see inside the SUV as it sat there, idling, correct?
MR. NAGEL: Correct.
MR. JACKSON: That's because the dome light was on, isn't that right?
MR. NAGEL: Correct, sir.
MR. JACKSON: And you noticed that the dome light was on inside because you could clearly see what was happening inside the SUV at that time as you passed by?
MR. NAGEL: I mean, I wasn't directly looking inside. I was making sure my sister got in the house okay.
MR. JACKSON: Right. But you did look inside that SUV?
MR. NAGEL: As I passed by, yes.
MR. JACKSON: And you saw one person?
MR. NAGEL: That's all I saw at the time. Yes.
MR. JACKSON: A female with long hair; is that right?
MR. NAGEL: Yes.
MR. JACKSON: And you did not see anybody else inside that SUV?
MR. NAGEL: No, not to my acknowledgment (sic).
MR. JACKSON: As a matter of fact, you were asked that in prior testimony and you indicated in response to that basic question, no, she was alone, correct?
MR. NAGEL: Correct, sir.
MR. JACKSON: May I have a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor. I have nothing further.
JUDGE CANNONE: Okay.
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Just to be clear, sir, she was alone as far as you could see, correct?
MR. NAGEL: Correct, sir. Yes.
MR. LALLY: Nothing further, Your Honor.
JUDGE CANNONE: All right. You are all set, Mr. Nagel.
MR. NAGEL: Thank you very much. I appreciate it.
(Whereupon, the witness is excused.)
JUDGE CANNONE: Jurors, this seems like a great time to take our morning recess.
(Whereupon, the jury is escorted from the courtroom and a brief recess is taken.)
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right. Your next witness, Mr. Lally?
MR. LALLY: Yes, Your Honor. The Commonwealth calls Ms. Heather Maxon to the stand.