Commonwealth v. Read — Trial ArchiveMatthew McCabe — Cross
1,244 linesCROSS-EXAMINATION BY MR. YANNETTI:
MR. YANNETTI: Good morning, Mr. McCabe.
MR. MCCABE: Good morning.
MR. YANNETTI: I’d like to start by discussing January 22nd, the week prior to January 29th, do you remember that Saturday?
MR. MCCABE: Yes, I do.
MR. YANNETTI: You had been at one of your daughter’s hockey games that day?
MR. MCCABE: The Saturday before, we’re saying?
MR. YANNETTI: Yes.
MR. MCCABE: Yes, I was.
MR. YANNETTI: And you wound up going to the Hillside in Canton, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: You went with your wife, Jennifer McCabe?
MR. MCCABE: Yes.
MR. YANNETTI: When you got there you saw Karen Read and John O’Keefe there together, correct?
MR. MCCABE: I was there previous to them, but yes, I saw them there, yes. I eventually saw them.
MR. YANNETTI: I should have phrased the question in that ultimately you ran into John and Karen together, correct?
MR. MCCABE: Yes, I did.
MR. YANNETTI: And when you came in contact with them you and your wife and Brian Albert and his wife, Nicole, who is your sister-in-law, hung out with Karen Read and John O’Keefe, correct?
MR. MCCABE: Yes, there was a big group of people hanging out together, correct.
MR. YANNETTI: There were other people in addition to the ones that I’ve just named?
MR. MCCABE: Yes, there were.
MR. YANNETTI: So you were with John and Karen for maybe around an hour or so that night of January 22?
MR. MCCABE: I’d say, I don’t know exactly what time they arrived but yes, I’d say they were there for at least an hour.
MR. YANNETTI: During that hour span of time they appeared to be enjoying each other’s company?
MR. MCCABE: Yes.
MR. YANNETTI: The two of them had arrived together, correct?
MR. MCCABE: They walked in together, yes.
MR. YANNETTI: And there were no problems that night that you could see between John and Karen, correct?
MR. MCCABE: Yes, I did not see any problems.
MR. YANNETTI: Now, moving onto the Waterfall on January 29th, I am not going to go through with you who arrived when and who left when and where people sat at which table, we’re going to skip all that, and I’d like to streamline the questioning if I can, and I just want to talk to you about two or three areas. You would agree that at the Waterfall the mood among the people who were there was festive, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: Everybody appeared to be happy and enjoying themselves, correct?
MR. MCCABE: Everybody was enjoying each other’s company, correct.
MR. YANNETTI: Specifically with regard to John O’Keefe and Karen Read, they appeared to be quite happy that (c) had been accepted into Bishop Feehan, correct?
MR. MCCABE: I recall talking to John about it. He was happy that (c) got into Bishop Feehan, I do not recall talking to her about Bishop Feehan but definitely John was happy about (c) , yes.
MR. YANNETTI: You have previously testified that they were both excited about that, were you not?
MR. MCCABE: If I did, I did. I just know that John mentioned that he was out because was excited about (c) being at Bishop Feehan. If I grouped them both in then they were happy. I don’t remember what I said when I said it. Put it this way, I didn’t see her that she wasn’t happy about it. Does that make sense?
MR. YANNETTI: Yeah, well, I’m just going by your words, sir. As far as you could see, they were both excited about her acceptance, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And they had just found out the previous day or so, correct?
MR. MCCABE: I don’t recall what day they found out, but I know that John mentioned he went out for some beers. He was excited because (c) got into Bishop Feehan, and he mentioned that he was out with another one of his friends whose daughter also got into Bishop Feehan.
MR. YANNETTI: Right. And it appeared to be new news, correct?
MR. MCCABE: Oh, yes. It was news they were waiting on, yes.
MR. YANNETTI: Right, you hadn’t heard it before. This was the first that you heard it, correct?
MR. MCCABE: I don’t know if I heard it, if somebody -- if he had already leaked it the day before or that day, but the first I heard it from John.
MR. YANNETTI: All right. But it was clear to you that it was really important to John O’Keefe that (c) get into Bishop Feehan and go there, correct?
MR. MCCABE: They applied. He was excited for her to go there.
MR. YANNETTI: It was clear that he believed it was an achievement for her, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And you could glean also that John O’Keefe felt like it was an achievement for him, as well, correct?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Could you glean that from him?
MR. MCCABE: He was happy that she got in. I couldn't -- I don’t know what he was -- if he felt it was his achievement. He was happy for (c) .
MR. YANNETTI: Of course. And he was doing right by his sister’s daughter, correct?
MR. LALLY: Objection.
MR. MCCABE: I don’t know what that means. You can go to any school and do right.
MR. YANNETTI: In any case, everything seemed good that night?
MR. MCCABE: Everything was good.
MR. YANNETTI: There were no arguments?
MR. MCCABE: There was no arguments that I saw.
MR. YANNETTI: John was drinking beer?
MR. MCCABE: To my recollection, yes.
MR. YANNETTI: And you had previously testified that you saw Karen was drinking some type of clear liquid that you assumed was some type of vodka drink, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: But you didn’t think that they were drinking much, correct?
MR. MCCABE: At the Waterfall?
MR. YANNETTI: Yes.
MR. MCCABE: No. They were only there for an hour, so.
MR. YANNETTI: Right. And they got there around 11:00, correct?
MR. MCCABE: Give or ten, yep, 11:00-ish.
MR. YANNETTI: And that bar is pretty strict about last call, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: And you spoke with both of them during the course of the night, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Neither John nor Karen was intoxicated in your view, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that?
MR. MCCABE: They were drinking. I don’t know what the guideline of intoxication is, but they were drinking.
MR. YANNETTI: Do you recall testifying before the grand jury regarding this matter on April 26th of 2022?
MR. MCCABE: If you have that, then I must have. I don’t recall my questions, that question specific, but yes.
MR. YANNETTI: I didn’t ask about the questions. I just asked if you recall testifying before the grand jury on that date.
MR. MCCABE: I don’t remember the date. I recall testifying before the grand jury.
MR. YANNETTI: Okay. If I suggested to you that it was April 26th of 2022, would you quarrel with that?
MR. MCCABE: Did you say would I quarrel?
MR. YANNETTI: Yeah.
MR. MCCABE: No, it was definitely around that time.
MR. YANNETTI: Okay. And at that grand jury presentation, Mr. Lally was there, correct?
MR. MCCABE: Yes.
MR. YANNETTI: None of the defense team was there, correct?
MR. MCCABE: No.
MR. YANNETTI: Karen Read was not there, correct?
MR. MCCABE: No.
MR. YANNETTI: And there was no judge there, correct?
MR. MCCABE: No.
MR. YANNETTI: And April 26, was approximately three months after January 29th of 2022?
MR. MCCABE: Yes.
MR. YANNETTI: Is it fair to say that your memory about whether or not John and/or Karen was intoxicated, would have been better on April 26th of 2022 than it would be today?
MR. LALLY: May we approach, Your Honor?
JUDGE CANNONE: All right. I’ll see you at sidebar. Jurors feel free to stand and stretch.
(Sidebar commences:
MR. LALLY: Your Honor, my objection is not to whether or not he said this before or didn't say this before. My objection is to the terminology, and I'm not being sure I have as much as much of an issue with intoxicated but there have been numerous other witnesses who have been asked whether or not they felt that Ms. Read specifically was under the influence. I do have a severe issue with that as I think that is a legal standard. So if counsel wants to ask did she seem drunk or she was, you know, as he's done as far as slurring or words, or, you know, having difficulty standing, things like that, I think those are (indiscernible) but I think anything approaching what the jury is ultimately supposed to conclude is --
JUDGE CANNONE: What's the question that was asked?
MR. YANNETTI: I asked --
JUDGE CANNONE: No, no, not you. The grand jury.
MR. YANNETTI: Oh, I'm sorry.
JUDGE CANNONE: If you used intoxicated, he can certainly use intoxicated in the question.
MR. YANNETTI: Question: Did either of them on this particular evening seem sort of openly intoxicated to you? Answer: No.
JUDGE CANNONE: Okay. Yeah, this overly intoxicated term has been baffling me, frankly, throughout, but you can use what he said in the transcript. Okay.
MR. LALLY: Understood.
end of sidebar.)
MR. YANNETTI: May I proceed?
JUDGE CANNONE: Yes.
MR. YANNETTI: I had just asked you if your memory of your observations of Karen Read and John O’Keefe from January 29, would have been better on April 26th of 2022, than it would be today?
MR. MCCABE: Yes, I think that’s fair to say.
MR. YANNETTI: And that’s because your memory doesn’t get better over time, correct?
MR. MCCABE: I don’t know. I would say it's fair to say, yes, my memory would be better that day.
MR. YANNETTI: And on that day you were asked by Mr. Lally, quote, did either of them -- strike that. I’m going to back to the previous sentence just to put it in context.
MR. MCCABE: Yes.
MR. YANNETTI: The previous sentence was from Mr. Lally: “Obviously you’ve had social occasions with Mr. O’Keefe and Ms. Read before, correct?” And your answer was, “Oh, yes.” Right?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: I’ll let him have it.
MR. MCCABE: I answered yes, I had previous. I don’t know if I said, “Oh, yes” but my answer was, yes, of course I had a previous relationship with them.
MR. YANNETTI: Okay, I’m sorry, I cut you off, sir.
MR. MCCABE: I'm saying of course I had a previous relationship with them.
MR. YANNETTI: And the question that I wanted to direct you to just to put it in context was did either of them, speaking about John and Karen, on this particular evening seem sort of overly intoxicated to you; do you recall that question?
MR. MCCABE: I don’t recall the specific question, but that’s the question.
MR. YANNETTI: And your answer was no to that?
MR. MCCABE: Yes, if that’s my answer, then it was no.
MR. YANNETTI: In terms of whether you can confirm that that was the question and answer if I should you the transcript would that refresh your memory?
MR. MCCABE: Yes, of course it would.
MR. YANNETTI: This is 2103, lines 13 to 15 for counsel and if I can ask permission, Your Honor.
MR. YANNETTI: Having reviewed that transcript did I get the question and answer correct?
MR. MCCABE: Yes, you did.
MR. YANNETTI: Just a couple more things about the Waterfall. I wanted to ask you about Brian Albert and Brian Higgins, sir.
MR. MCCABE: Yes.
MR. YANNETTI: They were both there that night while you were there, correct?
MR. MCCABE: Yes, they both were there.
MR. YANNETTI: And they are both pretty big guys, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that?
MR. MCCABE: Yes, they’re good sized guys.
MR. YANNETTI: Did you see Brian Albert and Brian Higgins practicing fighting at the Waterfall?
MR. MCCABE: Practicing fighting?
MR. YANNETTI: Right, did you see them kind of square off in a fighting stance with each other?
MR. MCCABE: I recall them grabbing each other. I don’t recall them squaring up like they were fighting each other, no. They were playing a little grab ass with each other. I did see them grab each other. I didn’t see a physical, hey, let’s go, we’ll duke it out. I do not recall that.
MR. YANNETTI: So are you saying, you’re taking you literally, that they grabbed each other’s asses, is that it?
MR. MCCABE: No, I’m saying grab asses, it’s a figure of speech.
MR. YANNETTI: Okay, but they didn’t grab each other, they were in a fighting stance, weren’t they? Didn’t they crouch down low towards each other?
MR. MCCABE: I’m telling you, I don’t recall seeing them crouching in a fighting stance. I recall them, I recall someone grabbing somebody. I don’t remember who grabbed who. I just recall like a bear hug or something, I thought I recall them doing a bear hug.
MR. YANNETTI: So you recall them, one of them getting behind the other one and kind of like restraining them or grabbing them?
MR. MCCABE: I think there was a bear hug, yeah. That’s what’s in my memory.
MR. YANNETTI: And you would agree with me that after closing time Brian Albert and Brian Higgins were two of the people who went back to 34 Fairview Road, the Albert home, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: Before everyone left, before you left, it was announced around the table that everyone was welcomed back at Brian Albert and Nicole Albert’s house, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Karen Read and John O’Keefe were both there when that invitation was announced, correct?
MR. MCCABE: Yes.
MR. YANNETTI: You would agree that it was expected that Karen Read and John O’Keefe would go to the Albert home that night, correct?
MR. MCCABE: If they wanted to come they were welcome, yes.
MR. YANNETTI: And that plan would have been for them to go inside the Albert home, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Do you recall what time you left the Waterfall?
MR. MCCABE: I left the Waterfall after midnight, give or take 12:10-12:15-ish. I don’t know the exact specific time, a little before 12:15 but definitely 12:10-ish, 12:15-ish, in there.
MR. YANNETTI: And you were one of the last ones to leave the Waterfall?
MR. MCCABE: Yes, as I mentioned Nicole Nesis and I walked out together from the Waterfall.
MR. YANNETTI: Your wife, Jennifer McCabe, had walked out of the bar physically before you did, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: And you actually met her in the parking lot?
MR. MCCABE: She was already going to meet Nicole in the parking lot, correct.
MR. YANNETTI: And you got into the car to drive to the Albert’s home, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: So I’m going to ask you about the ride back to the Albert’s home in a bit but right now I want to skip to when you got there, okay?
MR. MCCABE: Okay.
MR. YANNETTI: When you first got there your wife parked your vehicle in the driveway, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Which side of the driveway did she park your vehicle in?
MR. MCCABE: As I mentioned yesterday I don’t recall if it was immediately on the left, meaning the left towards the lawn or if she was in the next spot one over. I don’t remember exactly if it was exactly, or one spot over.
MR. YANNETTI: How many cars were in the driveway at that point?
MR. MCCABE: At least two. I don’t recall if there was more than two.
MR. YANNETTI: So if there were at least two those two would have been parked abutting the garage area? In other words, let me rephrase. So there are two lanes in that driveway, correct?
MR. MCCABE: My recollection is two lanes but there is more space id you, I know we go over, we’ve gone over, there’s more space to kind of park three cars.
MR. YANNETTI: To the right?
MR. MCCABE: To the right, correct. But we weren’t to the right. We were either left or middle.
MR. YANNETTI: You were behind one vehicle, whichever lane you were in or were you pulled right up to one of the garage entrances?
MR. MCCABE: I don’t recall if we pulled all the way in or not. I don’t remember.
MR. YANNETTI: So there were at least two vehicles in the driveway before you got there, correct?
MR. MCCABE: In the driveway?
MR. YANNETTI: Yes.
MR. MCCABE: Yes, there were cars in the driveway.
MR. YANNETTI: And when you parked in the driveway, fair to say that there was no black SUV at the Albert’s home?
MR. MCCABE: Are you referencing Karen’s SUV? I don’t know what color the Alberts cars were.
MR. YANNETTI: Oh, okay.
MR. MCCABE: Are you referencing their SUV?
MR. YANNETTI: Put it this way, yes, I’m referencing Karen’s SUV.
MR. MCCABE: That was not at the home.
MR. YANNETTI: And that was not in the driveway, correct?
MR. MCCABE: Karen’s SUV was not in the driveway.
MR. YANNETTI: Right, and it was not adjacent to the property or not the street anywhere that you could see?
MR. MCCABE: Correct, it was not there.
MR. YANNETTI: But you say that there was a Jeep in the street at that time, correct?
MR. MCCABE: There was a Jeep parked in front of, at the end of the driveway in front of the mailbox.
MR. YANNETTI: And that Jeep belonged to Brian Higgins?
MR. MCCABE: I found out it belonged to Brian Higgins. I didn’t know it was his Jeep when I arrived.
MR. YANNETTI: And it had a plow on the front of it?
MR. MCCABE: Yes, it did.
MR. YANNETTI: It was parked adjacent to the Albert’s property on Fairview facing up the hill towards Chapman Street, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And at the time that you arrived that was the only vehicle that was parked on Fairview Street adjacent to the Albert property, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And your testimony is that that Jeep remained parked in front of the Albert house just to the left of the driveway as you face the house, until Brian Higgins finally left and drove it away at the end of the night, correct?
MR. MCCABE: That’s my recollection, was his Jeep was out in front of the mailbox.
MR. YANNETTI: With the Court’s permission could be display Exhibit 66?
JUDGE CANNONE: Okay.
(Exhibit No. 66 was published to the jury.)
MR. YANNETTI: So Mr. McCabe, I’m highlighting with a spotlight the front of the Albert’s home. When I get to the point where the Jeep was parked would you stop me and you can adjust it right or left if I go too far.
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Can we have him use the laser pointer first and then?
MR. YANNETTI: Sure, I hope you’re better than I am.
MR. MCCABE: No.
MR. YANNETTI: May I approach? A I was hoping I didn’t have to.
MR. YANNETTI: Oh, you have a laser pointer?
MR. MCCABE: I don’t have one.
MR. YANNETTI: That’s fine. You can –- yeah.
MR. MCCABE: The Jeep was right there, from the edge of the driveway right there. I believe it was a two-door Jeep.
MR. YANNETTI: Okay, and it looks like part of the Jeep would have been blocking the driveway?
MR. MCCABE: No, no, where the mailbox is, the Jeep was right there.
MR. YANNETTI: Okay.
MR. MCCABE: It was not blocking the driveway.
MR. YANNETTI: All right, if I can have a moment.
JUDGE CANNONE: Sure.
MR. YANNETTI: The mailbox, the spotlight is there, would that have been where the back of the Jeep was?
MR. MCCABE: Yeah, the back would have been in the vicinity, the edge of the driveway and the mailbox.
MR. YANNETTI: So it wasn’t blocking the driveway at all when you saw it?
MR. MCCABE: No.
MR. YANNETTI: It’s facing to the left as you look at Exhibit 66, correct?
MR. MCCABE: Facing, heading to the left of the house, correct.
MR. YANNETTI: If we can have the lights back on.
MR. YANNETTI: And as you testified, that Jeep was there the whole night, Brian Higgins didn’t go out to move it at any point, correct?
MR. MCCABE: I never saw Brian Higgins go outside and move his Jeep.
MR. YANNETTI: About five minutes after you got to the Albert’s home that night you saw a black SUV parked outside the home, correct?
MR. MCCABE: Yes, again, I don’t know the exact minutes but give or take, four or five minutes.
MR. YANNETTI: And when you saw that black SUV parked outside the Albert home, Higgins’ Jeep was still there, correct?
MR. MCCABE: Yes, to my recollection the Jeep was still outside in front of the mailbox.
MR. YANNETTI: The black SUV was parked in front of Higgins’ Jeep with the plow on the front, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: How far or close to that Jeep was the black SUV?
MR. MCCABE: I don’t recall the exact distance. Again, when I looked outside my focus was on the black SUV, looked outside, would have been in front of the front door.
MR. YANNETTI: With regard to the distance between the Jeep and the black SUV was it greater or smaller than the distance between you and me right now?
MR. MCCABE: It would be smaller. If you’re the end of the Jeep and I’m the end of --
MR. YANNETTI: Let’s say I’m the rear-end of the black SUV and you’re the front end of the Jeep?
MR. MCCABE: I’d say you’d be a little closer to me.
MR. YANNETTI: With the Court’s permission may I walk closer to the witness so he can give an estimate?
JUDGE CANNONE: Sure.
MR. YANNETTI: And you can stop me, sir.
MR. MCCABE: Yeah. I don’t know. Again, when I looked outside I was focused on the SUV. I wasn’t focused on the Jeep or the truck. I don’t know the exact distance. You can walk three more feet or three feet that way, but it was out in front of the house. That’s all I can tell you.
MR. YANNETTI: Well, you will agree with me that you’ve given conflicting information about where the black SUV was when you first saw it?
MR. MCCABE: If you tell me I gave conflicting information you can show it to me. I don’t recall. I’ve always said the SUV was in front of the house.
MR. YANNETTI: Right, and when you said in front of the house you meant that as you look out the front door of the Albert residence which on Exhibit 66 would have been the door to the left, that’s the classic front door?
MR. MCCABE: The classic front door looking at the house on the main part of the Colonial.
MR. YANNETTI: Looking straight out from there that’s where the black SUV was positioned, correct?
MR. MCCABE: In that vicinity, correct.
MR. YANNETTI: Right, it would have been sort of directly in front of you as you look out that front door, correct?
MR. MCCABE: Like I said, in the vicinity of looking out the front door was the black SUV. If it was three feet this way or three face this way or three feet that way, I don’t know. It was just out in front of the house.
MR. YANNETTI: That was where it was when you first spotted it according to your testimony today, correct?
MR. MCCABE: Yes.
MR. YANNETTI: But you spoke to Michael Proctor during the afternoon of January 29th, did you not?
MR. MCCABE: Yes, I did.
MR. YANNETTI: That was the very day that these events occurred, correct?
MR. MCCABE: Yes, it was.
MR. YANNETTI: You would agree with me that your memory of where that black SUV was when you first spotted it on January 29th, would it have been better on that very day than it would be today, correct?
MR. MCCABE: Possibly, yes.
MR. YANNETTI: It’s almost two-and-a-half-years later?
MR. MCCABE: Two-and-a-half-years that it lived in my memory, yes.
MR. YANNETTI: But your memory does not get better over time, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: On January 29th of 2022 when you spoke to Michael Proctor you told him that you saw a black SUV parked to the right of the residence as you at the property from the street, did you not?
MR. MCCABE: I did not. Can you elaborate what you mean by the right of the residence?
MR. YANNETTI: Well, I will just repeat the question. Did you tell Michael Proctor on January 29th of 2022 that you observed a big, dark SUV parked to the right of the house?
MR. MCCABE: What right? Looking at the house to the right, or looking at the house to the left? When you say right I don’t know what you mean by right.
MR. YANNETTI: Is your memory exhausted as to what you told Michael Proctor?
MR. MCCABE: No, not at all.
MR. YANNETTI: If your memory is not exhausted, would you agree with me that while you were at 34 Fairview you told Michael Proctor that you observed a big, dark SUV parked to the right of the house?
MR. MCCABE: That could have been the second time I informed him of seeing the SUV.
MR. YANNETTI: Okay, if I suggested to you that that was the first time, according to what you told Michael Proctor would you dispute that?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: Is your memory exhausted as to whether or not it was the second time according to what you told Michael Proctor?
MR. MCCABE: My memory is not exhausted.
MR. YANNETTI: Okay, so if your memory is not exhausted, do you deny telling Michael Proctor that you observed a big, dark SUV parked to the right of the house?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that?
MR. MCCABE: I don’t know if I can answer it. I believe it’s the second question. I told him I saw an SUV parked in front the house, then I saw an SUV move further up the right which looking out of the house would be to the right of the house so that would be when I saw the SUV to the right of the house, would be the second time I saw the SUV. I’ve always stated the SUV was in front of the house if looking out the front door.
MR. YANNETTI: So you deny telling Michael Proctor that when you first saw the SUV, by the way, is this funny? I’m sorry --
MR. MCCABE: This is not funny, sir. Not at all. It’s just been two years of misery.
MR. YANNETTI: You’re smiling now, that’s why I asked.
MR. MCCABE: You keep repeating the same question.
MR. YANNETTI: Well, I’m trying to get answer that you won’t give me, sir. When you talked to Michael Proctor on January 29th, 2022, when you first observed the big, dark SUV you said to him it was parked to the right of the house?
MR. LALLY: Objection.
JUDGE CANNONE: This is the last time for that question. Is that right?
MR. MCCABE: That is not right. The SUV the first time was in front of the house coming out the front door. The second time was, it was to the right of the house.
JUDGE CANNONE: You have to move on.
MR. YANNETTI: Got you. Okay. All right.
MR. YANNETTI: So, you did not say that, but you did say that you were making those observations from the front door, correct?
MR. MCCABE: As I stated yesterday I recall --
MR. YANNETTI: That’s a yes or no question, I’m sorry.
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer it, yes or no?
MR. MCCABE: I can’t. I said yesterday I looked out the window and I looked out the front door. I don’t remember which order.
MR. YANNETTI: Well, you told Michael Proctor that the first time you looked out, it was out the front door, did you not?
MR. MCCABE: I don’t recall what I told Michael Proctor.
MR. YANNETTI: You don’t recall. May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. YANNETTI: Page 2 of Proctor’s report, Counsel.
JUDGE CANNONE: Next time, show it to --
MR. YANNETTI: I’m sorry.
MR. YANNETTI: If you can read the first few sentences of that second paragraph?
MR. MCCABE: The second paragraph?
MR. YANNETTI: May I approach?
JUDGE CANNONE: Yes.
MR. YANNETTI: Here it says you don’t remember what you told Michael Proctor, did that report refresh your memory?
MR. MCCABE: I’m not saying I don’t remember what I told Michael Proctor.
MR. YANNETTI: Well, hold on a second.
MR. MCCABE: I’m stating what I remember.
MR. YANNETTI: Hold on a second, sir. You just told this jury that you don’t remember what you told Michael Proctor. Those were your words?
MR. MCCABE: Yes, at the point I’m reading. I don’t remember the exact wording.
MR. YANNETTI: Okay.
MR. MCCABE: But I know what I told Michael Proctor.
MR. YANNETTI: All right, and you told Michael Proctor that you observed a big, dark SUV parked to the right of the house, did you not?
MR. MCCABE: At some point in the conversation, yes, I told Michael Proctor that a big, dark SUV moved to the right of the house.
MR. YANNETTI: Moved to the right of the house, is what you just said?
MR. MCCABE: All right, let me rephrase. At some point, there was a big, dark SUV parked in front of the right of the house. I physically didn’t see it move, so I need to rephrase, I can’t say move.
MR. YANNETTI: What I’m concentrating on now, sir, not what your memory is today or what you testified to the jury today, I’m concentrating on what you told Michael Proctor that very day on January 29th of 2022, okay, and you initially told him that it was parked to the right of the house, the big, dark SUV and that you made those observations from the front door and then you stated you looked out the front window -–
MR. LALLY: Objection, Your Honor.
MR. YANNETTI: -- and observed the same big, dark SUV had moved to the other side of the property, correct?
JUDGE CANNONE: The objection is sustained. You have to break that down. And I thought we have moved on from this, Mr. Yannetti.
MR. YANNETTI: No, we haven’t gotten to the second part of the --
JUDGE CANNONE: So bring the document and I’ll see you at sidebar.
(Sidebar commences:
JUDGE CANNONE: So he's answered your question. It's not the answer that you want, so you have to give the (indiscernible) at this point, and asking compound questions doesn't get you any closer.
MR. YANNETTI: I understand.
JUDGE CANNONE: So let me just read the portion. All right. He's testified he doesn't know (indiscernible). This isn't clear enough to me through this witness that this was the initial observation.
MR. YANNETTI: Your Honor, just for the record --
JUDGE CANNONE: We can mark it.
MR. YANNETTI: We can mark that one.
JUDGE CANNONE: We're not marking that. Can you mark that, please?
COURT REPORTER: Double I for identification, Your Honor.
(Whereupon Exhibit II, Excerpt from Proctor Report, was marked for identification.)
JUDGE CANNONE: Thank you.
MR. YANNETTI: So it's double I for identification says that he saw it on the right, and then he looked out the front window and saw that it had moved to the other side of the property, so it's clear that he saw it first. And second, according to what he told Proctor, he won't admit to that now, but I don't have that yet before the jury. I haven't been able to ask him about the (indiscernible) when it moved.
JUDGE CANNONE: You did and he just answered it. You asked it in a compound way. What do you say, Mr. Lally?
MR. LALLY: Your Honor, what I would say is showing the witness what the trooper wrote in his report it's not a transcript of what this witness said. So if this witness can agree or disagree with what Trooper Proctor wrote in his report, but I don't think that --
MR. YANNETTI: I can ask him, do you disagree with what is written in this report.
JUDGE CANNONE: He already said he disagree with that.
MR. YANNETTI: I don't believe he answered the question about moving to the other side of the property because it was a compound question.
JUDGE CANNONE: I'm going to give you a little warning -- one little warning fact by question and question, and you're going to live with the answer. If you can't get it through him, you can get it through (indiscernible).
MR. YANNETTI: Understand. Understand.
JUDGE CANNONE: I'll give this back.
end of sidebar.)
JUDGE CANNONE: One last question on this, Mr. Yannetti.
MR. YANNETTI: Yes. With regard to Trooper Proctor’s report that you have in front of you, right, it’s II for identification?
MR. MCCABE: Yes, I’m reading it.
MR. YANNETTI: You will agree with me that he reported your conversation as saying that the vehicle was first to the right and then moved to the other side of the property, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: You testified before the grand jury regrading this issue on April 26th, of 2022, did you not?
MR. MCCABE: Yes, I did.
MR. YANNETTI: And you talked about the vehicle moving from point A to point B, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And you estimated that it was 15 to 20 feet or so that the SUV moved along the property line, correct?
MR. MCCABE: Yes. Again, I don’t know the exact distance but estimates.
MR. YANNETTI: At that point in time, you were asked to clarify what you had meant when you said that the vehicle was first on the right side of the property; do you recall that testimony?
MR. MCCABE: I do not.
MR. YANNETTI: Do you recall that Mr. Lally asked you, you know, to the right would have been towards the driveway side of the property, and that you answered, “that’s correct?”
MR. MCCABE: I don’t remember the conversation, and again to the right looking at the house or to the right looking out of the house?
MR. YANNETTI: That’s what I’m talking about. To the right looking at the house would be towards the driveway part, correct?
MR. MCCABE: To the right looking at the house would be towards the driveway.
MR. YANNETTI: And that’s your testimony where the vehicle started out, correct, and moved towards the flagpole the second time?
MR. MCCABE: The vehicle started in front of the house and moved towards the flagpole, correct. So looking out of the house it moved towards the right.
MR. YANNETTI: Now, excuse me, all right, you told Michael Proctor that initially it was parked closer to the driveway or the mailbox when you first saw it, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Objection sustained. We’re moving off this, Mr. Yannetti.
MR. YANNETTI: Sure.
MR. YANNETTI: Wherever it was when you first saw it, where was the Jeep in relation to that black SUV when you first laid eyes on the black SUV?
MR. MCCABE: Again, I was focused on the black SUV. My recollection is the Jeep was still in the same spot which you had pointed out earlier on the exhibit.
MR. YANNETTI: In terms of where it was facing, I’m sorry, the Jeep was behind the black SUV?
MR. MCCABE: The Jeep would have been behind the black SUV, correct.
MR. YANNETTI: Wherever it was along that property line you would agree with me that before the black SUV arrived outside the Albert home you didn’t notice any tire tracks in the snow on the street in front of the house, correct?
MR. MCCABE: Before, yes; that’s correct.
MR. YANNETTI: Before the black SUV arrived?
MR. MCCABE: Correct.
MR. YANNETTI: At all times that you saw the black SUV, first or second, it was always facing towards Chapman Street, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: And it was always facing in the same direction that you say that Higgins’ Jeep was facing, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And that would mean that the passenger’s side of the black SUV was the closest side to the Albert home, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And it was the closest side to you when you were first looking at it, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Now, your testimony today is you don’t recall if the first time you looked at that black SUV it was through the front door or if it was through a front window, correct?
MR. MCCABE: Correct, I don’t recall which one I looked out. I knew I looked out both of them at some point. I just don’t recall which one was first.
MR. YANNETTI: Whichever one it was when you first laid eyes on that black SUV, you did not see John O’Keefe in the passenger’s seat, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: How long a span of time was it between the first time you looked out and saw the black SUV and the second time?
MR. MCCABE: Again, I don’t have the exact time. I’m going to guess three, four, five minutes at most.
MR. YANNETTI: And what you did in between those three, four, five minutes was you went back to the table or near the table in the kitchen/dining room area where everybody was congregated?
MR. MCCABE: That’s correct.
MR. YANNETTI: And you went back there to talk to people and socialize, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: Then you came back to the front of the house and either went to the front window or the front door and that’s when you noticed that the black SUV had moved to the other side of the property, correct?
MR. MCCABE: Yeah, at that moment it had moved to the right of the property.
MR. YANNETTI: It had driven forward, correct?
MR. MCCABE: I did not see it drive but it did move, yes.
MR. YANNETTI: And it moved forward?
MR. MCCABE: It had to get there somehow, yes.
MR. YANNETTI: It was now closer to the flagpole than it was the first time, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: And the flagpole as you look at the property, not when you were looking out but as you look at the property from the street that would have been to the left, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And again, it was still facing towards Chapman Street?
MR. MCCABE: Yes.
MR. YANNETTI: In terms of how many times you saw the black SUV having moved outside the house you would agree with me that you had contradicted yourself about how many times that it moved, correct?
MR. MCCABE: No.
MR. YANNETTI: Yesterday and today you testified that it was in three different spots and then it was gone, correct?
MR. MCCABE: Yes, three times I looked out and saw the SUV.
MR. YANNETTI: Right, and again, in May of 2024, yesterday and today, all three times it moved it was moving further or farther up Fairview towards Chapman Street, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And in fact, you’ve testified now in May of 2024 that the third time that you saw it, the black SUV was even past the fire hydrant just about to the neighbor’s property, correct?
MR. MCCABE: Yes.
MR. YANNETTI: But again, your memory of where it was the last time that you saw it or how many times you saw it, I should say, would have been better on January 29th than today, correct?
MR. MCCABE: Again, assumption, yes. I guess it should be.
MR. YANNETTI: And in fact, when you were talking to Michael Proctor you had just observed the black SUV just hours before speaking to him, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Not tow-and-a-half-years before, right? Is that a yes?
MR. MCCABE: Oh, yes.
MR. YANNETTI: When you spoke to Michael Proctor you told him that you only saw the black SUV in two different spots, correct?
MR. MCCABE: That’s what it says on this paper. My recollection has always been I saw the black SUV in three different spots.
MR. YANNETTI: You just called it a paper, it’s a police report, correct?
MR. LALLY: Objection.
JUDGE CANNONE: That’s sustained, Mr. Yannetti.
MR. YANNETTI: Now, since you talked to Michael Proctor on January 29, of 2022, it’s fair to say you’ve had multiple conversations about this case with your family, correct?
MR. MCCABE: Of course I’ve talked about this case.
MR. YANNETTI: That includes in-person conversations, correct?
MR. MCCABE: With my family?
MR. YANNETTI: Yes.
MR. MCCABE: Yes.
MR. YANNETTI: As well as phone calls and texts?
MR. MCCABE: Yes.
MR. YANNETTI: You’ve also, since you’ve talked to Michael Proctor have had multiple conversations about this case with your in-laws, correct?
MR. MCCABE: Yes.
MR. YANNETTI: That also includes in-person conversations and well as phone calls and texts, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: And since you gave that statement to Michael Proctor you’ve have multiple conversations specifically with Brian Albert, correct?
MR. MCCABE: Yes, I’ve talked with Brian Albert.
MR. YANNETTI: That would be in person, phone calls and texts?
MR. MCCABE: That is correct.
MR. YANNETTI: Would you agree with me that in terms of the changes in your version of events from what you’ve testified during this trial to what is in Michael Proctor’s report, you put the SUV farther down Fairview towards Chapman street now, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: Your testimony during this trial puts the SUV past the fire hydrant almost towards the neighbor’s house, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: However many times you saw that black SUV you’d agree with me you never observed any damage to the rear of that vehicle, correct?
MR. MCCABE: Correct.
MR. YANNETTI: You never saw any damage to the rear right taillight, correct?
MR. MCCABE: Correct.
MR. YANNETTI: You’ll also agree with me that every time you saw that black SUV the vehicle had its headlights on, correct?
MR. MCCABE: I was looking at it as we talked about it moving up the property out near the back, the back of the SUV. The assumption is the headlights were on but I was wasn’t looking at the headlights.
MR. YANNETTI: Well, that would have meant that the area in front of the vehicle was lit up, correct?
MR. MCCABE: Yeah, but like I said it was further up the road.
MR. YANNETTI: Sometime after that black SUV first arrived you noticed that there were tire tracks, I should say, in a V-shape on the street in front of the Albert home, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: And those tire tracks were from the curb in front of 34 Fairview towards the neighbor’s property across the street and then back towards the curb, correct?
MR. MCCABE: Yes, it came out, came up towards the cross street and came back in.
MR. YANNETTI: And the pattern of those tire tracks that you observed were consistent with the vehicle making a three-point-turn, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that?
MR. MCCABE: I don’t know if the vehicle made a three-point-turn. It could be consistent with it because it was a wavy pattern.
MR. YANNETTI: Okay.
MR. MCCABE: I’ve never looked at tire tracks after I’ve done a three-point-turn to determine what the action looked like, but in and back out.
MR. YANNETTI: There was nothing about those tire tracks that ruled out a three-point-turn to you, correct?
MR. MCCABE: No.
MR. YANNETTI: All right, you didn’t see those tire tracks again until the black SUV arrived at the home, correct?
MR. MCCABE: You mean, yes, I didn’t see them previous to the black SUV.
MR. YANNETTI: And Higgins’ Jeep was already there before the black SUV arrived, correct?
MR. MCCABE: Yes.
MR. YANNETTI: So Higgins’ Jeep was already parked and stationary when there were no tire tracks in that area, correct?
MR. MCCABE: I didn’t notice, what, I parked my car. We parked in the driveway and walked in the house. I wasn’t looking at the tire tracks. Higgins’ Jeep was already parked.
MR. YANNETTI: Right; right, you didn’t see tire tracks at that point, is my point?
MR. MCCABE: Yes, I didn’t see it.
MR. YANNETTI: At the point that you saw those tire tracks there were no other vehicles in the area along the Albert family property line on Fairview other than Higgin’s Jeep and the black SUV, correct?
MR. MCCABE: That’s my recollection, yes.
MR. YANNETTI: So now we’re going to go back to where I had left off with regard to meeting your wife, Jennifer McCabe, in the car after leaving the Waterfall, do you recall that we sort of left off with you getting in the car and starting to drive home?
MR. MCCABE: Yes.
MR. YANNETTI: Once you got inside the car your wife ultimately called John O’Keefe along the ride home, correct?
MR. MCCABE: John O’Keefe had texted my wife and my wife called him. He was asking where to, where to was the address of the house so she called him to tell him.
MR. YANNETTI: And you knew that he was asking that because the Bluetooth of the car was connected to her phone, correct?
MR. MCCABE: I believe the Bluetooth was on. Again, I could hear his conversation. My assumption is the Bluetooth was on.
MR. YANNETTI: You could hear both sides of the conversation, correct?
MR. MCCABE: I could hear John’s call, yes.
MR. YANNETTI: Your wife and John, correct?
MR. MCCABE: Yes, I was sitting next to my wife, I could hear her.
MR. YANNETTI: And you heard John tell your wife that he was planning to go to 34 Fairview, correct?
MR. MCCABE: Yes.
MR. YANNETTI: He had told your wife in your presence that he and Karen would meet your wife and you there, correct?
MR. MCCABE: He said, we’re on our way.
MR. YANNETTI: And you knew again that the plan was to go inside 34 Fairview, correct?
MR. MCCABE: Yes, that was the plan.
MR. YANNETTI: You heard your wife tell John that 34 Fairview is off Chapman Street, correct?
MR. MCCABE: Either I was also talking, so I don’t know if my wife was repeating but yes, we did say off Chapman Street.
MR. YANNETTI: It could have been you, it could have been your wife?
MR. MCCABE: Yes.
MR. YANNETTI: But you told him it was off Chapman Street, right?
MR. MCCABE: That’s correct.
MR. YANNETTI: And then your wife hung up with John at least temporarily, but then John called back, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: He indicated he needed more specific directions to 34 Fairview, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And then you heard your wife or maybe you participated in the conversation, I won’t rule that out, but between the two of you, you did give him more specific directions, correct?
MR. MCCABE: Yes, we did.
MR. YANNETTI: And either you or your wife and you can correct me if you know if it’s one or the other, but one of you told him to go down Chapman and take Fairview as if they were going to (c) ’s house, correct?
MR. MCCABE: Yes, we had mentioned go down Chapman to Fairview, if you know where (c) lives drive past (c) ’s street, the house will come up on your left.
MR. YANNETTI: And I believe you previously explained that (c) was a friend of John’s niece (c) and also your daughter, (c) , correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: That was a good way to orient him as to where to go, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Once you did that John O’Keefe never called back for any clarification, correct?
MR. MCCABE: Yes, not to my recollection.
MR. YANNETTI: With regard to your state of mind based on that conversation and the instructions that either you or your wife or both of you gave John, you certainly assumed that John and Karen would be arriving at Fairview coming from the Chapman Street direction, correct?
MR. MCCABE: That was my assumption.
MR. YANNETTI: Okay.
MR. MCCABE: As I had stated yesterday there’s multiple ways to go, but that was my assumption.
MR. YANNETTI: And it was an educated assumption based on the conversation that you had, correct?
MR. MCCABE: Yes.
MR. YANNETTI: May I approach the witness, Your Honor?
JUDGE CANNONE: Okay.
MR. YANNETTI: I’m going to hand the witness a document. I’ve handed you something. If you could take a look and tell the jury whether you recognize what that depicts?
MR. MCCABE: Yes, this is a map showing Cedarcrest Road intersecting with Fairview Road on the opposite side towards Chapman Street intersecting with Fairview, as well as on the streets in the, it’s called the Cedarcrest neighborhood, in the Cedarcrest neighborhood.
MR. YANNETTI: Realizing that you don’t have a compass or ruler, does it appear to be generally to scale in terms of where the roads are?
MR. MCCABE: Yes.
MR. YANNETTI: And it appears to be a fair and accurate depiction of the layout of particularly Cedarcrest, Fairview and Chapman Street?
MR. MCCABE: Yes.
MR. YANNETTI: I would offer that, Your Honor.
JUDGE CANNONE: Is there any objection?
MR. LALLY: No, Your Honor.
COURT REPORTER: Exhibit 86, Your Honor.
(Whereupon Exhibit No. 88, Map, was marked as an exhibit.)
JUDGE CANNONE: Why don’t we hand over the one other one?
MR. YANNETTI: May I display that to the jury, Your Honor?
JUDGE CANNONE: Okay.
COURT REPORTER: Your Honor, that will be Exhibit 88.
JUDGE CANNONE: Thank you.
MR. YANNETTI: What is displayed on the screen, Mr. McCabe, does that appear to be what I just showed you as Exhibit 88?
MR. MCCABE: Yes.
MR. YANNETTI: Do you see that there’s a red bubble there, does that have any meaning to you as you look at the map?
MR. MCCABE: Yes, that’d be the location of 34 Fairview.
MR. YANNETTI: As we look at the map Cedarcrest is up the top and Chapman is down the bottom?
MR. MCCABE: That is correct.
MR. YANNETTI: With regard to the directions that you gave, you and your wife gave to John O’Keefe, if they were coming as you directed them on Chapman Street, would they be taking a right onto Fairview or a left?
MR. MCCABE: The way that we mentioned, they’d be taking a left.
MR. YANNETTI: In terms of looking at this map did they they’d be traveling on Chapman Street really from the left to the right as you look at Exhibit 88, correct?
MR. MCCABE: Correct, yes, left to right, correct.
MR. YANNETTI: And that would allow them to take a left down Fairview heading towards Cedarcrest, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: And you would agree with me that that would put the driver’s side closest to the Albert property if they just kept going straight all the way to Cedarcrest, correct?
MR. MCCABE: Yes, the driver’s side would have been closest to the property.
MR. YANNETTI: You can turn the lights back on.
MR. YANNETTI: So you agree me that your state of mind was that’s the direction that they would go in?
MR. MCCABE: That’s what I thought they would have. That’s how I thought they would have come into the neighborhood.
MR. YANNETTI: Correct, but you never saw the black SUV traveling in that direction or parked in that direction, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: That would mean in order for the SUV to be facing in the other direction one way would be for it to be to make a three-point-turn, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow it.
MR. MCCABE: You’re saying if they came down from Chapman and then spun around facing back up towards Chapman? Is that what you’re asking? Yes, at some point she would have had to turn around.
MR. YANNETTI: Or do a three-point-turn, correct?
MR. MCCABE: She could do a three-point-turn, she could just loop around at Cedarcrest and come back up, either one, right.
MR. YANNETTI: And a three-point-turn would be consistent with what these V-shaped tire tracks that you saw when you looked out the front of Brian Albert’s house, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: When you were interviewed by Michael Proctor on January 29th of 2022, you had not spoken with Ryan Nagel, correct?
MR. MCCABE: No.
MR. YANNETTI: So it’s fair to say you did not know what, if anything, Ryan Nagel had seen in terms of how or what direction the black SUV arrived in, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: When you spoke to Michael Proctor on January 29th of 2022, the phone conversation that your wife had with John O’Keefe that you were either participating in or listening to, that was regarding the directions, that was fresh in your mind on January 29th, correct?
MR. MCCABE: Yeah.
MR. YANNETTI: Those directions had just been given to John, you know, the night before or really hours before, correct?
MR. MCCABE: Yes.
MR. YANNETTI: So, on January 29th when you’re talking with Michael Proctor believing that John had driven down Chapman Street, you were trying to square in your own mind how the vehicle wound up in the other direction when you looked out of the house, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Were you?
MR. MCCABE: Can you just repeat that again? I think I heard it. I just want to make sure.
MR. YANNETTI: Sure. It wasn’t a great question. I’ll see if I can make it any better. You’re talking with Michael Proctor on January 29th in the afternoon, correct?
MR. MCCABE: Yes.
MR. YANNETTI: He’s asking you about the positioning of the black SUV, among other things, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Again, getting to your state of mind, your state of mind was that, you know, you gave these directions, you or your wife, gave the directions to John and you’re thinking he came down Chapman but you never saw the vehicle in that direction, but only in the other direction facing towards Chapman, is that fair?
MR. MCCABE: Yes.
MR. YANNETTI: And so you’re naturally trying to square in your own mind, trying to make it make sense as to how that happened, correct?
MR. LALLY: Objection.
JUDGE CANNONE: You can answer that. Were you trying to square that in your mind, sir?
MR. MCCABE: I wasn’t trying, I don’t know if I was trying to square it, I just knew that for some reason her vehicle was facing up Chapman. He’s asking, I didn’t know what she did. I just know her vehicle was facing up Chapman.
MR. YANNETTI: And to you that was the significance of the V-shaped tire tracks when you were talking to Proctor, right?
MR. LALLY: Objection.
JUDGE CANNONE: Was it?
MR. MCCABE: I recall and said there was V-shaped tire tracks and I believe the question was could it be consistent with a three-point-turn. I said it could be, but I didn’t know if it was a three-point-turn. It could be, because it was weird tracks again, I did not see the vehicle. I don’t know if she pulled in the driveway and turned. I don’t know if she went to Cedarcrest and turned. I don’t know if she did a three-point-turn. I have no idea.
MR. YANNETTI: One last question on this three-point-turn. You offered the V-shaped tire tracks as an explanation for what could have happened, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow that.
MR. MCCABE: I have stated there was V-shaped tire tracks. I didn’t say it was a three-point-turn.
MR. YANNETTI: Well, you’d agree with me in any case that if John and Karen entered from Cedarcrest and you saw them when you saw them there’d be no need for a three-point-turn, correct?
MR. MCCABE: You’re saying if she didn’t come from Chapman, she came from the other side, Cedarcrest, there would be no need for a three-point-turn or any type of turn because she was already facing that way.
MR. YANNETTI: That’s right. If she came from Cedarcrest she’s already in the very direction that you saw the black SUV when you looked out, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: Now, your testimony during this trial is that you were looking straight out from the house to the street and, you know, again, I understand your qualification, it could have been three feet this way or three feet that way, but your memory is that the car was essentially right in front of you, give or take, the first time you saw it?
MR. MCCABE: My memory is the car was right in front of the front door, yes.
MR. YANNETTI: Okay, and you were looking straight at it, correct?
MR. MCCABE: As I stated earlier, the first time I looked out I don’t recall if I was looking straight out from the front door or if I was peeking out through the window, but my sight would have it lined up in front of the front door. So, if I looked out from the front door then it would have been, yes, straight in front of it.
MR. YANNETTI: And you would agree with me that when you were looking at the vehicle from wherever you were looking at it, you were looking straight over the front lawn, correct?
MR. MCCABE: I would have been looking over the lawn, correct. I was focused on the vehicle.
MR. YANNETTI: And the V-shaped tire tracks would --
JUDGE CANNONE: Hold on, Mr. Yannetti.
MR. YANNETTI: Sorry.
MR. MCCABE: I said I was focused on the vehicle.
MR. YANNETTI: I didn’t know that he was not done with his answer. My apologies.
MR. MCCABE: My fault.
JUDGE CANNONE: We only can have one person speaking at a time. The court reporter can’t be expected to have two different people at the same time. Please be cautious.
MR. YANNETTI: I will try, Your Honor.
MR. YANNETTI: Did you get your full answer out, sir?
MR. MCCABE: I did.
MR. YANNETTI: Okay. You would agree with me that the V-shaped tire tracks were farther away from you than the front lawn?
MR. MCCABE: Yes, they were on the road.
MR. YANNETTI: And if you were able to see the V-shaped tire tracks you certainly were able to clearly see the Albert’s front lawn?
MR. MCCABE: Correct. As I mentioned, I was looking over the lawn, but I’m assuming the lawn was somehow in my visibility. I wasn’t focusing on the lawn.
MR. YANNETTI: Okay. I’m going to try that question again and see if I can get a yes or no answer. If you were able to clearly see the V-shaped tire tracks you were certainly able to clearly see the Albert’s front lawn, correct?
MR. MCCABE: If I looked at it. It’s a confusing question. As I said, I was focused on the road. I wasn’t looking at the lawn.
MR. YANNETTI: Let me be clear, I’m not asking you if you looked at it, I asked if you were able to clearly see it?
MR. MCCABE: I would be able to, yes.
MR. YANNETTI: And when you looked out at that black SUV and saw the V-shaped tire tracks you did not see a 6’2” man lying on the front lawn, correct?
MR. MCCABE: No, I did not.
MR. YANNETTI: And at no point in time whenever you looked at that black SUV did you see John O’Keefe inside the vehicle, correct?
MR. MCCABE: No, I did not see John in the vehicle.
MR. YANNETTI: At no point in time did you hear any yelling outside 34 Fairview, correct?
MR. MCCABE: No, I did not.
MR. YANNETTI: At no point in time did you hear any scream of pain outside 34 Fairview, correct?
MR. MCCABE: No, I didn’t.
MR. YANNETTI: At no point in time did you ever hear any crash noises outside 34 Fairview?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow it.
MR. MCCABE: No.
MR. YANNETTI: And last question on this point, at no point did you hear any noises at all outside 34 Fairview that attracted your attention?
MR. MCCABE: No, there was music playing in the house so I didn’t hear anything.
MR. YANNETTI: Okay. Now, after being at the Albert home for a period of time early that morning, you left the home approximately 1:40 a.m. or so?
MR. MCCABE: Yes, give or take, 1:40-1:45. I don’t know the exact time.
MR. YANNETTI: And you walked out with your wife, Jennifer McCabe, and two of Brian Jr’s., friends, correct?
MR. MCCABE: Yeah, Brian’s two friends were joining Jennifer and I. We were driving them home.
MR. YANNETTI: And whether you knew their names or not that night you subsequently learned their names to be Sarah Levinson and Julie Nagel?
MR. MCCABE: That’s correct.
MR. YANNETTI: You all came out of the house together, correct?
MR. MCCABE: Yeah. I don’t recall who was where when we walked to the car but we all left the house at the time.
MR. YANNETTI: And directly in front of all of you was the front lawn, correct?
MR. MCCABE: If I was to walk straight out the front door, yes, the lawn was in front of me.
MR. YANNETTI: When you were walking out the black SUV was gone, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: And when you first came out of the house facing that front lawn you didn’t see a black baseball cap, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: Or a black sneaker, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: Or 45 pieces of red plastic taillight, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: Or even one, correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: And once again you didn’t see a 6’2” man lying on a front lawn, correct?
MR. MCCABE: No, I wish I did, but I didn’t.
MR. YANNETTI: As you were walking out with your wife and these two other women none of them yelled that they saw anything like that, correct?
MR. MCCABE: Correct.
MR. YANNETTI: Then you all piled into the vehicle, which was in the driveway, correct?
MR. MCCABE: Yes.
MR. YANNETTI: You and your wife got into the front, the driver’s seat and the passenger’s seat, correct?
MR. MCCABE: Yes, I was in the driver’s seat and my wife was in the passenger’s seat. I had to brush off the car, but that’s where we sat.
MR. YANNETTI: The other two women who were friends with Brian Jr. got into the second row passenger’s seat, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And I believe your testimony is you don’t know who was where within that but they did get in there?
MR. MCCABE: They were behind us. I don’t know who sat in what seat.
MR. YANNETTI: Once you got inside the vehicle is that when you realized that you had left something back into the house?
MR. MCCABE: I don’t recall leaving something in the house.
MR. YANNETTI: I’m sorry?
MR. MCCABE: I don’t recall leaving something in the house. If I did, I did. I don’t recall leaving something in the house.
MR. YANNETTI: You don’t recall going back into the house?
MR. MCCABE: No, I don’t recall going back into the house.
MR. YANNETTI: If you went back into the house the front lawn would have been directly in front of you from the driveway, correct?
MR. MCCABE: The lawn would have been to my left and I would have went up the walkway to the house.
MR. YANNETTI: Right, and that was my next question. When you went up the walkway the front lawn would have been to your left, right?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: And then coming out you would have had the same view that you had the first time, correct?
MR. MCCABE: Yes, I would have come back out the same way down the steps to the left.
MR. YANNETTI: Without going through all the various items that I asked you about in terms of not seeing on the front lawn, the sneaker, the cap, the taillight, et cetera, you didn’t see any of those stuff at any point the second time, correct?
MR. MCCABE: Correct, I did not see anything.
MR. YANNETTI: So now you’re finally back in your vehicle and you are backing out of the driveway, correct?
MR. MCCABE: Yes.
MR. YANNETTI: Is it fair to say that to drop the women off your plan was to head towards Chapman Street?
MR. MCCABE: Yes, that’s what we did.
MR. YANNETTI: Which would mean that as you back out of the driveway the rear-end of your car would have been facing towards Cedarcrest?
MR. MCCABE: Correct.
MR. YANNETTI: And then you would straighten out and now you’ve got a straight shot up towards Chapman Street, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And it would also mean that you drove the length of the Albert’s property, correct?
MR. MCCABE: Yes.
MR. YANNETTI: While you did that, sir, Julie Nagel never said what was found, did she?
MR. MCCABE: I did not hear Julie say that.
MR. YANNETTI: She never said she had seen a black object, correct?
MR. MCCABE: I did not hear her say that.
MR. YANNETTI: She never said that she saw a black blob, correct?
MR. MCCABE: I did not hear her say that.
MR. YANNETTI: And she didn’t say that the black blob that she supposedly saw was five or six feet in length, correct?
MR. MCCABE: Again, I did not hear it.
MR. YANNETTI: And she never said that she might have seen a person, correct?
MR. MCCABE: I did not hear her. Are you talking about in the car?
MR. YANNETTI: Correct.
MR. MCCABE: Yeah, I did not hear say it in the car.
MR. YANNETTI: And you were right there driving, correct?
MR. MCCABE: I was driving, obviously focused on the road, the windshield wipers. It was snowing pretty heavily.
MR. YANNETTI: You didn’t have ear plugs in?
MR. MCCABE: I didn’t, but they were all talking in the car.
MR. YANNETTI: You didn’t have ear plugs in?
MR. MCCABE: No, I didn’t.
MR. YANNETTI: Certainly not the noise cancellation ear plugs, correct?
MR. MCCABE: Correct, I did not have ear plugs.
MR. YANNETTI: And you never stopped the car because you never heard Julie Nagel say anything about anybody being in trouble, correct?
MR. MCCABE: I did not hear her say it.
MR. YANNETTI: Okay. You woke up the next morning as you said, to screaming, correct?
MR. MCCABE: Yeah.
MR. YANNETTI: The screaming was so loud that you thought that the person screaming was actually in your bedroom, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: And it startled you, fair to say?
MR. MCCABE: Yes, it did.
MR. YANNETTI: And then ultimately you learned that Karen Read ended up in your driveway, correct?
MR. MCCABE: Yes.
MR. YANNETTI: You could hear her screaming outside, correct?
MR. MCCABE: I could hear her outside, correct.
MR. YANNETTI: She was hysterical?
MR. MCCABE: She was screaming, Jen, she just kept repeating Jen, loud.
MR. YANNETTI: In a hysterical manner?
MR. MCCABE: Yeah, Jen, Jen, yes.
MR. YANNETTI: And she was screaming so loud, that she was in danger of waking up the whole neighborhood, correct?
MR. MCCABE: She was loud, correct.
MR. YANNETTI: And other than screaming, Jen, Jen in that hysterical tone, you really couldn’t make out her words a lot of the time, correct?
MR. MCCABE: Not when she was outside my house, no.
MR. YANNETTI: Skipping ahead to when you went back to Fairview that morning, it’s fair to say that when you went, did you say that you went inside Fairview at maybe around 7:00 a.m., is that a good estimate?
MR. MCCABE: Yeah, I don’t know the exact time but I would say give or take, it could be a little before or a little after, but somewhere in that vicinity.
MR. YANNETTI: I believe you testified that the only people inside that you saw there were your wife, Brian Albert and Nicole Albert?
MR. MCCABE: Yes.
MR. YANNETTI: In addition to Officer Lank?
MR. MCCABE: Officer Lank, that moment that’s who I recall seeing there.
MR. YANNETTI: And you didn’t know where Brian Jr. was, whether he was sleeping, but you didn’t see him?
MR. MCCABE: I don’t recall seeing him at that moment, no.
MR. YANNETTI: And Officer Lank was the only police official that you saw inside, correct?
MR. MCCABE: At that moment, correct.
MR. YANNETTI: Okay. Now, in the days after January 29th, you participated in a group text exchange with three other people, do you recall that?
MR. MCCABE: Could you name those three people?
MR. YANNETTI: Sure. You had a group text chat going with your wife, Jennifer McCabe, your brother-in-law, Brian Albert, and your sister-in-law, Nicole Albert, correct?
MR. MCCABE: Oh, yeah.
MR. YANNETTI: I’d like to ask you some questions about that group text chat if I might.
MR. MCCABE: Sure.
MR. YANNETTI: You would agree with me that on February 1st of 2022, that was three days after John O’Keefe passed away, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And at some point on February 1st of 2022, you were physically either at or near the Albert home at 34 Fairview in Canton, correct?
MR. MCCABE: I could have been. I don’t recall if I was there.
MR. YANNETTI: Do you recall watching what investigators were doing in the neighborhood on February 1st?
MR. MCCABE: I do not. If you could show it to me it could maybe refresh the memory. I do not recall that specific day.
MR. YANNETTI: You don’t recall monitoring what troopers were doing in the neighborhood?
MR. MCCABE: I was not monitoring anything that the troopers were doing. If I had driven down the street dropping someone off or picking somebody up and saw the troopers, then I saw the troopers. I was not monitoring anything.
MR. YANNETTI: Directing your attention to 1:34 p.m. and 27 seconds, you texted your wife, Brian Albert and Nicole Albert quote: “Troopers back out front but in front of Asian house.” Did you not?
MR. MCCABE: If I texted that. If you could show it to me.
MR. YANNETTI: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. YANNETTI: 02150. Mr. Lally, I’m sorry.
JUDGE CANNONE: No, show it to him. Show it to Mr. Lally and don’t reference what it is.
MR. YANNETTI: You’d think it was my first trial.
MR. MCCABE: Thank you.
MR. YANNETTI: I’m showing you a document, sir, and look up, look at it by yourself and look up at me when you’re done.
JUDGE CANNONE: Do you need glasses with you?
MR. MCCABE: I don’t use glasses but I can’t see this so maybe I need glasses. I’m making it out. I’ve got it.
MR. YANNETTI: I do have a –- pair.
JUDGE CANNONE: No, he says he’s got it.
MR. MCCABE: It’s just dark, but I got it.
MR. YANNETTI: If you’re struggling --
MR. MCCABE: I’m reading mine, the middle one?
MR. YANNETTI: Yes.
MR. MCCABE: Yeah, I got it. I see it.
MR. YANNETTI: Take all the time you need.
MR. MCCABE: Yeah, I see it.
MR. YANNETTI: If I may just grab it.
JUDGE CANNONE: Yes.
MR. YANNETTI: Having reviewed that document is your memory refreshed?
MR. MCCABE: I see that I texted what you said I texted, the troopers were outside of the house, yes.
MR. YANNETTI: Right, that’s my question. This is a page that contains the group text that you had with Jen McCabe, Brian Albert and Nicole Albert, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And in terms of the question that I asked you, you now acknowledge that you testified, “Troopers back out front but in front of Asian house,” correct?
MR. MCCABE: That’s correct.
MR. YANNETTI: Mr. McCabe, what is an Asian house?
MR. MCCABE: The next door neighbors to the Alberts were Asian.
MR. YANNETTI: Okay. So you mean that a family of Asian origin lived next door?
MR. MCCABE: Yeah.
MR. YANNETTI: They were the next door neighbors to your brother-in- law and sister-in-law?
MR. MCCABE: Correct, if you come out of Fairview they lived to the right of the Alberts.
MR. YANNETTI: And did you know their last name was the Chungs?
MR. MCCABE: I had no idea. I’ve never met them. I don’t know their last names. I just knew it was an Asian family next door.
MR. YANNETTI: You didn’t feel the need to ask their names or try to call them by their names?
MR. MCCABE: I’ve never met them.
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained. You know what, Mr. Yannetti, let’s come to sidebar.
(Sidebar commences:
JUDGE CANNONE: I just want to know where you're going with this. It just sounds like you're trying to show bad character on this person's part.
MR. YANNETTI: So he says this is in a group text to Brian Albert who never corrects him, and he never tells him, no, that's the Chungs. It's not the Asian house, and it shows, you know, Brian Albert's state of mind as this text message is going on.
JUDGE CANNONE: For what purpose?
MR. YANNETTI: Well, they're monitoring what's going on in the neighborhood. This witness is watching what they're doing, and reporting back to Brian Albert --
JUDGE CANNONE: That's not a proper way of going at this and then using the Chungs (indiscernible). That's what I'm asking you.
MR. YANNETTI: I'm done with that. I won't pursue that any further.
JUDGE CANNONE: Yeah.
end of sidebar.)
MR. YANNETTI: When you did tell the group chat about the troopers being at that house nobody asked you to clarify which house you were talking about, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow that. Did anyone ask you to clarify?
MR. MCCABE: Nobody asked me to clarify, that I recall.
MR. YANNETTI: In fact, Brian Albert responded with just a question, right now, do you recall that?
MR. MCCABE: Yes, I think that was on the screen you just showed me.
MR. YANNETTI: And you responded yes, correct?
MR. MCCABE: Did I get to see all the texts or no?
MR. YANNETTI: Your Honor, with the Court’s permission -–
JUDGE CANNONE: Yes.
MR. YANNETTI: I’m going to give you the previous page –-
JUDGE CANNONE: Just give it to him.
MR. YANNETTI: -- in case you need it. I’ll just give you one and if you need the other just let me know.
MR. MCCABE: No problem. Thank you.
MR. YANNETTI: Again, read it silently to yourself and look to me when you’re done.
MR. MCCABE: Am I to assume where you said Brian Albert said, “Right, right now?”
MR. YANNETTI: Yes, would you like to see that?
MR. MCCABE: Do, would that be the last one and this is the next one? I’m just making sure.
MR. YANNETTI: I understand and I appreciate that but you tell me, with the Court’s permission?
JUDGE CANNONE: Sure.
MR. MCCABE: Thank you. Yes, that’s what I was looking for.
MR. YANNETTI: If I may collect the document?
JUDGE CANNONE: Yes. A I didn’t read the rest of it.
MR. YANNETTI: No, no, take your time.
MR. MCCABE: Thank you.
MR. YANNETTI: You would agree with me that after you told the group in this group text that the troopers were back out front in front of that house, Brian Albert’s response was right now?
MR. MCCABE: Yes.
MR. YANNETTI: And then you said yes, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And then Brian Albert replied, okay, correct?
MR. LALLY: Objection, Your Honor, as to the reading.
JUDGE CANNONE: Is that how he replied?
MR. MCCABE: That’s what it just said, yes.
MR. YANNETTI: Now, at that point you texted the group that you were trying to get a picture of what you were seeing, correct?
MR. MCCABE: I didn’t see that on the text.
MR. YANNETTI: And you don’t deny that you said that in the text, correct?
MR. MCCABE: Will you show me the text, please?
MR. YANNETTI: Oh, sure. Did you say you didn’t see it in the text?
MR. MCCABE: I didn’t see that, no.
MR. YANNETTI: I’m sorry. It’s probably because I didn’t give it to you.
MR. YANNETTI: May I approach?
JUDGE CANNONE: Yes. Have you shown those both to Mr. Lally?
MR. YANNETTI: I’m showing you two pages.
MR. MCCABE: Okay.
MR. YANNETTI: Again, read it to yourself and look up at me when you’re done.
JUDGE CANNONE: Do you have a phone with a flashlight with you?
MR. MCCABE: I don’t have a phone on me. If I had a flashlight I’ll be able to see it.
JUDGE CANNONE: Okay.
MR. MCCABE: It’s dark.
JUDGE CANNONE: Madam Court Reporter, Mr. Clerk.
MR. MCCABE: Thank you very much. Much better. I’ve got it now.
MR. YANNETTI: Could I grab that from you; thanks. Having reviewed that do you acknowledge you texted the group that you were trying to get a picture of what you were seeing?
MR. MCCABE: Yes, I said I was going to try to take a photo.
MR. YANNETTI: You would agree with me that you were watching what was going on, correct, on February 1st?
MR. MCCABE: No, I just happened to be driving through the neighborhood at that moment.
MR. YANNETTI: So you happened to be driving through and then you texted the group to tell them what you saw, correct?
MR. MCCABE: Yes.
MR. YANNETTI: And then you didn’t just keep driving up the road and leave the area, did you?
MR. MCCABE: I think I did.
MR. YANNETTI: Well --
MR. MCCABE: Unless you tell me I went back I think I did. I said I was going to try to take a picture.
MR. YANNETTI: Right, that’s my point.
MR. MCCABE: Yeah.
MR. YANNETTI: Just having seen the troopers back out there at that house, in your mind you still weren’t done, correct?
MR. MCCABE: I was going to take a picture to show them, oh, the troopers are outside your house.
MR. YANNETTI: Right, in answer to my question, you weren’t done with that scene, correct?
MR. MCCABE: I think I was because I don’t know if I took a picture. I think I went through. I mentioned I was going to try to take a picture. I don’t know if I took a picture or not.
MR. YANNETTI: You didn’t intend to be done at that point, correct?
MR. MCCABE: I didn’t intend to be done?
MR. YANNETTI: Right, because you wanted to take a picture?
MR. MCCABE: I was going to take a picture to show them that the troopers were outside.
MR. YANNETTI: Right. You wanted to continue to monitor what was going on, did you not?
MR. MCCABE: I was not monitoring what was going on. I just happened to drive by at that moment.
MR. YANNETTI: May we be seen at sidebar?
(Sidebar commences:
MR. YANNETTI: Your Honor, I have the entire unredacted exhibit that includes the entire conversation that I would like to mark for identification only. I will ask as the examination goes on I'd be seeking to introduce selected portions of the text exchange which have been redacted and don't show any complete phone numbers, and don't show any of the objectionable markings, including that one. But I'd like this marked for ID at this time, if I could.
JUDGE CANNONE: Madam Court Reporter, could you mark this for Identification.
COURT REPORTER: JJ for Identification.
(Whereupon Exhibit JJ, Printout of Entire Group Chat, was marked JJ for identification.)
MR. YANNETTI: I think I have ten or fifteen minutes. I don't know if the Court as to --
JUDGE CANNONE: So we'll take -- I think the jury needs a break, so we'll take a recess.
MR. YANNETTI: Sounds good.
end of sidebar.)
JUDGE CANNONE: Jurors, it seems like a good time for a break.
COURT OFFICER: All rise for the jury.
(Jury out.)
JUDGE CANNONE: Is there any objection from counsel if Mr. McCabe brings his own phone in should he need a flashlight again?
MR. YANNETTI: No objection.
JUDGE CANNONE: Why don’t you do that then. All right, thank you.
COURT OFFICER: All rise for the Court, please.
(Court recessed at 11:04 a.m.)
(Court in session.)
(Defendant is present with counsel.)
(Jury in.)
COURT OFFICER: Court, all rise for the jury. Court is entering. Court is back in session. Please be seated.
JUDGE CANNONE: All right, can we bring Mr. McCabe back in, please.
(Witness present.)
JUDGE CANNONE: All right, Mr. Yannetti.
MR. YANNETTI: Thank you, Your Honor.
MR. YANNETTI: Mr. McCabe, I’m going to focus a bit of a different way to hopefully make it easier on you and me and the jury. I’d like to hand you, with the Court’s permission, the four pages that you’ve already reviewed, if I can have you identify these, if I may approach?
JUDGE CANNONE: Sure.
MR. MCCABE: Thank you.
MR. YANNETTI: And I’d just like you to take a look at them and just confirm that’s what you’ve already seen before we took the break.
MR. MCCABE: Yes, these are the ones you showed me earlier.
MR. YANNETTI: Thank you, sir. May I approach?
JUDGE CANNONE: Yes.
MR. YANNETTI: Having reviewed those, sir, did this appear to be an accurate transcription of the sequence and the content of the group text chat within that time frame?
MR. MCCABE: Yes.
MR. YANNETTI: I would offer that, Your Honor.
JUDGE CANNONE: The only concern is I don’t want to give the jury something they need a flashlight to read.
MR. YANNETTI: Well, my next --
JUDGE CANNONE: So can I see it?
MR. YANNETTI: Of course.
JUDGE CANNONE: Why don’t I see counsel up here.
COURT REPORTER: KK for Identification, Your Honor.
(Whereupon Exhibit KK, Four Pages of Group Chats, was marked for identification.)
(Sidebar commences:
JUDGE CANNONE: All right.
MR. YANNETTI: So my next move would be to display it.
JUDGE CANNONE: All right. So are you objecting to this content coming in? This can't go to the jurors. I mean, you can't read it, but are you objecting to the content if we get it lightened or something?
MR. YANNETTI: Are you saying because it's not legible.
JUDGE CANNONE: Right. That's what I said -- I can't admit an exhibit that the jurors need a flashlight to read it.
MR. JACKSON: We just, as a matter of protocol, the reason that it's so awful is because there's like three --
JUDGE CANNONE: Right.
MR. YANNETTI: Because we had to redact it.
MR. JACKSON: However, I will say if it's any assistance to the Court and possibly to the jurors, the unredacted version can be shown on the TV is very legible. These are awful.
MR. YANNETTI: The unredacted version has the phone numbers visible.
MR. JACKSON: I said the electronic.
MR. YANNETTI: I don't need to argue with you. Oh, okay.
MR. JACKSON: (Indiscernible) paper copy is awful.
JUDGE CANNONE: What's the Commonwealth's position -- if this were legible, would there be an objection to it?
MR. LALLY: I have some concerns about hearsay from other people's statements (indiscernible).
JUDGE CANNONE: I have concerns about statements with his wife. Is it all a group chat?
MR. YANNETTI: Yes, but I'm not introducing the statements between him and his wife, and, again, yeah, it's all a group chat. There are other people on the group chat. It's not just a husband/wife communication.
JUDGE CANNONE: What do you want to put up on the screen and we can deal with it -- so is there an objection or not?
MR. LALLY: Yes.
JUDGE CANNONE: What do you want to put up on the screen? Is it just what he has already said?
MR. YANNETTI: Yes.
JUDGE CANNONE: All right. So that's already in evidence. Just what he said you can display.
MR. YANNETTI: And I point out what was said to him.
JUDGE CANNONE: So just what's already in evidence?
MR. YANNETTI: Whatever is already in evidence with regard to this exchange, yes.
JUDGE CANNONE: I'll let you put those up on the screen.
MR. YANNETTI: Okay.
JUDGE CANNONE: They've heard it. They'll see it on the screen, so it's in evidence. This is just useless, frankly.
MR. YANNETTI: It's not prejudicial, though. I'm an old guy, and if I put on reading glasses, I can read it.
JUDGE CANNONE: So that's a concern that I have.
MR. YANNETTI: I understand.
JUDGE CANNONE: Let's go ahead and just put up -- your objection is preserved. I'm going to think about it depending on --
MR. YANNETTI: Another way to do this --
JUDGE CANNONE: I haven't read them, and there's an objection - I need to read it.
MR. YANNETTI: I understand. If there's -- if we're not going to introduce the specific text, we can agree upon a transcript we can prepare to send to them so that they can read it by way of stipulation.
JUDGE CANNONE: Or something. But I will let you display only what's already in evidence.
MR. YANNETTI: Understood.
JUDGE CANNONE: There's an objection to this, so I'm not letting KK in yet. It's here. We can tie up the loose ends later.
MR. YANNETTI: Sounds good.
end of sidebar.)
MR. YANNETTI: I’m going to display the first page, 2150. How is your distance vision, are you able to read what’s on the screen?
MR. MCCABE: I don’t know why it’s in blue. Can I have them in front of me while you’re displaying them? Please?
JUDGE CANNONE: Yes.
MR. MCCABE: Thank you very much.
JUDGE CANNONE: Feel free to use the flashlight.
MR. YANNETTI: Yes, they are --
MR. MCCABE: Oh, yeah, that’s much better.
MR. YANNETTI: Much better?
MR. MCCABE: Yeah.
MR. YANNETTI: Okay, now we can all see it. With regard to your initial text exchange that we talked about can you read what you texted at 1:34 and 27 seconds in the afternoon of February 1st of 2022?
MR. MCCABE: Yes. Do you want me to?
MR. YANNETTI: Yes, please.
MR. MCCABE: Oh. “Troopers back out front but in front of Asian house. Looks like more has been dug up there for at least, or at least looks like it.
MR. YANNETTI: Okay. And if basically you go down the page, this is the responses, and who was it that responded to your notification that the troopers were back out front?
MR. MCCABE: That would be Brian Albert.
MR. YANNETTI: Brian Albert, Sr.?
MR. MCCABE: Yes.
MR. YANNETTI: And his response was?
MR. MCCABE: Right now?
MR. YANNETTI: At that was at 1:34 p.m. and 45 seconds?
MR. MCCABE: Yes, it was.
MR. YANNETTI: And you took that to be a question, correct?
MR. MCCABE: Yeah, asking, right now, yes.
MR. YANNETTI: We can move to the next exchange. Yes, 2151, please. Yes, please. And you responded to Brian by saying what his question is about right now?
MR. MCCABE: I responded, yes.
MR. YANNETTI: And that was at 1:34 p.m. and 56 seconds?
MR. MCCABE: Yes.
MR. YANNETTI: You would have still been on scene at that time?
MR. MCCABE: I’m not sure if I was still on scene but I was obviously --
MR. YANNETTI: In the area?
MR. MCCABE: -- it was in the area. I must have been in the area, correct.
MR. YANNETTI: And the next exchange, Mr. Bates. And then who responded to you?
MR. MCCABE: Brian Albert again.
MR. YANNETTI: And his response was?
MR. MCCABE: Okay.
MR. YANNETTI: Do you have a memory as to whether or not Brian Albert was on scene at that time, or if he was somewhere else?
MR. MCCABE: I don’t have a memory of where Brian was at that time.
MR. YANNETTI: Given the fact that you’re saying troopers are out front and he’s asking, “right now” is there --
MR. MCCABE: I’d assume he’s somewhere else, yeah.
MR. YANNETTI: The next exchange. Okay. And your response to him or your response to the group, I should say, was what?
MR. MCCABE: I had to pick up a car so drove through.
JUDGE CANNONE: So this is a little further than we talked about.
MR. YANNETTI: I know we’re getting to the next.
JUDGE CANNONE: So take this one down, please.
MR. YANNETTI: If I may just have a moment, Your Honor. I’m sorry. The second bubble, please, Mr. Bates, on 2152.
MR. YANNETTI: Okay. Now we’re at 1:35 p.m. and 16 seconds, Mr. McCabe?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: Your text to the group of you, your wife, Brian and Nicole Albert is what?
MR. MCCABE: Trying to get pictures.
MR. YANNETTI: At this point I ask that the next bubble be displayed and then I’m going to skip to the bubble after that once you see it. The next bubble comes from Brian Albert?
MR. MCCABE: Yes, Brian Albert.
MR. LALLY: Objection.
MR. YANNETTI: That’s at 1:35 and --
JUDGE CANNONE: Mr. Yannetti --
MR. YANNETTI: I’m sorry?
JUDGE CANNONE: The screen speaks for itself. If it doesn’t then the witness can tell us.
MR. YANNETTI: Of course.
MR. YANNETTI: What time is that at?
MR. MCCABE: 1:35:32.
MR. YANNETTI: And his response, does that appear to be a typo?
MR. MCCABE: P-K, I’m assuming.
MR. YANNETTI: All right, the next bubble after that, it should be 21:53, please, at the top? That is from whom?
MR. MCCABE: Brian Albert.
MR. YANNETTI: And the time there, are you able to make that out?
MR. MCCABE: Does that say 1:35:34 or 1:38:34?
JUDGE CANNONE: Whatever it says. If you can’t see it, you can’t see it. Next.
MR. YANNETTI: Sure. And his response was?
MR. MCCABE: Okay.
MR. YANNETTI: Does that appear to be correcting the P-K?
MR. MCCABE: I’d have to go back and --
MR. YANNETTI: The previous one –-
JUDGE CANNONE: Next.
MR. YANNETTI: Sure. All right, we can take that off for a minute.
MR. YANNETTI: I’d like to just go over two more areas of these group chats with you. You would agree with me that later that same day on February 4, the four of you: you, your wife, Brian Albert, and Nicole Albert discussed in that group chat the fact that Michael Proctor was talking to Kerry Roberts over the phone, correct?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
MR. YANNETTI: At 3:01 and 48 seconds you commented on the interview of Michael Proctor with Kerry Roberts, did you not?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: May we be seen?
JUDGE CANNONE: Okay. Jurors, feel free to stand up and stretch.
(Sidebar commences:
JUDGE CANNONE: All right. Mr. Lally's what the objection?
MR. LALLY: First and foremost, I have no idea what he's talking about because I haven't been shown what he's looking at.
MR. YANNETTI: Well, he's not looking at anything yet, but -- and Mr. Lally has this information because it was provided to both sides. By at 3:01 and 48 seconds on February 1, this witness said, "That it's very weird that she's been barely interviewed. The whole dead comment was just told."
JUDGE CANNONE: The whole what?
MR. YANNETTI: The whole dead was just told. I was supposed to have them talk last night, and I forgot to tell Proctor to call her. So this is not being offered for the truth of the matter asserted. It's not hearsay, therefore.
JUDGE CANNONE: So tell Mr. Lally where you found it.
MR. YANNETTI: It's on page 02160. And then I'm going to be doing three pages -- zero --
JUDGE CANNONE: Mr. Yannetti, you told me ten minutes, that was fifteen minutes ago. I know we took some time at sidebar, but.
MR. YANNETTI: Right. Well, I just have two more areas --
JUDGE CANNONE: Instead of telling me you have two more areas, just ask the questions.
MR. YANNETTI: Fine. And then after that, it says, to alert counsel, 2160 from 2162 and then 2148 to 2149.
JUDGE CANNONE: Do you have them in front of you because you've got your notes there?
MR. YANNETTI: I do. I do.
JUDGE CANNONE: Can you give those to Mr. Lally?
MR. YANNETTI: Yes.
JUDGE CANNONE: So you can see what he's doing. Sort of an aside, please don't have your assistant who's doing the screen highlight the proposed answers. He can highlight what you're asking, but he shouldn't highlight the answers.
MR. YANNETTI: I'll tell him. Thank you. It's 48 and 49 and then that's it.
JUDGE CANNONE: Is there an objection?
MR. LALLY: Same objection, Your Honor.
JUDGE CANNONE: Which is?
MR. LALLY: Hearsay.
JUDGE CANNONE: Are they his messages --
MR. YANNETTI: They are.
JUDGE CANNONE: -- regarding -- what's the purpose of them if it's not hearsay, what's the purpose of them?
MR. YANNETTI: It's to prove that they are getting their stories straight, that he is monitoring what the troopers are asking Kerry Roberts, that they're trying to maintain control of the narrative here. It goes to his state of mind, Brian Albert's state of mind, Jen McCabe's state of mind. It goes to all those states of mind. I'm offering it for the truth because I'm not saying that it's very weird that she has (indiscernible) that's the truth.
JUDGE CANNONE: All right. So I'll let you do this, but you have to do it in a more succinct. You're losing the jurors, Mr. Yannetti.
MR. YANNETTI: I'm trying. I'm just not getting cooperation from the witness, so.
JUDGE CANNONE: Shocking, right? Cross-examination.
MR. YANNETTI: I understand. I understand.
JUDGE CANNONE: Let's move it along, okay?
end of sidebar.)
JUDGE CANNONE: So I’d like you to not leave the witness in the dark. If there’s something that he can have?
MR. YANNETTI: Of course.
MR. YANNETTI: Sir, what I’m going to do now, sir, is to hand you three more pages and ask if you can identify those.
JUDGE CANNONE: All right, Mr. McCabe, generally do you recognize this?
MR. MCCABE: Yes, I’m just matching up, yup.
JUDGE CANNONE: Okay, go ahead, Mr. Yannetti.
MR. YANNETTI: Okay, the pages that I handed to you and that you now have in your possession, those from the same group chat that you identified earlier, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: It appears to have the same sequence and content of the group chat, as well?
MR. MCCABE: Yes.
MR. YANNETTI: I would offer that, Your Honor.
JUDGE CANNONE: Over the Commonwealth’s objection, again, I’m not sending anything to the jury that they can’t read.
MR. YANNETTI: Understood.
JUDGE CANNONE: So let’s mark this for identification.
COURT REPORTER: That will be LL for Identification.
JUDGE CANNONE: The substance of those on each individual one would be question by question.
MR. YANNETTI: Understood.
(Whereupon Exhibit LL, Pages of Texts from Group Text, was marked for identification.)
MR. YANNETTI: Mr. Bates, with regard to page 2160 I’m looking for the second bubble.
JUDGE CANNONE: Do you have an extra copy for me to follow along?
MR. YANNETTI: I’m sure we do.
JUDGE CANNONE: Mr. Yannetti, is this what was marked? You’re using that? All right.
MR. YANNETTI: I can give you an extra copy, Judge.
JUDGE CANNONE: And it’s a question by question objection.
MR. YANNETTI: May that be displayed, Your Honor?
JUDGE CANNONE: May what be displayed?
MR. YANNETTI: The content of that as an exhibit and I’m asking for that --
JUDGE CANNONE: I did not take it in. I said the content on a question by question.
MR. YANNETTI: Oh, Yes, yes, yes, ok, all right.
MR. YANNETTI: You saw that at 3:01 p.m. and 48 seconds on February 1st that you texted quote, very weird that she’s been barely interviewed. The whole dead comment was just told. I was supposed to have them talk last night and forgot to tell Proctor to call her. Do you recall that?
MR. MCCABE: Yeah, I recall it, correct.
MR. YANNETTI: All right, those are your words, correct?
MR. MCCABE: Yes, they are.
MR. YANNETTI: May that be displayed for the --
JUDGE CANNONE: No, it’s in. We may display it later but I’d like to move this testimony, sir. That’s in evidence.
MR. YANNETTI: Okay, and then in that discussion at 3:03 p.m. and 15 seconds it was Brian Albert who texted, Quote: Hope they don’t think she’s making it up after the fact for some reason, end quote, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow that.
MR. MCCABE: Can you read the time stamp again?
MR. YANNETTI: Yes, it’s on page 0-2-1-6-1.
MR. MCCABE: Oh, I found it.
MR. YANNETTI: Yeah, it’s in the middle. I got that time stamp correct, correct?
MR. MCCABE: 3:03:15.
MR. YANNETTI: Correct, and I read that accurately? Hope they don’t think she’s making it up after the fact?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: And then less than a minute later at 3:05 and 32 seconds you replied, Yes, she was hardly interviewed and I think just answered what was asked. Oh, I’m sorry, strike that. Strike that whole question. I skipped his next response which is at 3:05 and 2 seconds where he said: But if they barely interviewed her that’s on them, correct?
MR. MCCABE: From Brian, yes; that’s correct.
MR. YANNETTI: Okay, now with regard to that exchange, you would agree with me that you were talking about Kerry Roberts being interviewed by Michael Proctor, correct?
MR. MCCABE: I don’t want to make assumptions. Do you have the text previous to this that shows that we’re referencing Kerry?
MR. YANNETTI: I do, and I’ll show you that only to refresh your memory.
MR. MCCABE: Yeah, I didn’t know. I don’t want to assume something.
MR. YANNETTI: I understand. I’m going to show you one page and ask you to look at it silently to yourself, and I’ve opened the packet to the page. You just look at me when you’re done.
MR. MCCABE: Again, my assumption it’s Kerry. Can I go back and look?
MR. YANNETTI: Feel free.
MR. MCCABE: Okay, that’s what I was looking for.
MR. YANNETTI: May I approach?
JUDGE CANNONE: Yes.
MR. YANNETTI: Did those previous pages refresh your memory about the context of your group chat conversation?
MR. MCCABE: Yes, it did.
MR. YANNETTI: And certainly it was talking about Kerry Roberts being interviewed, correct?
MR. MCCABE: Yes, it was.
MR. YANNETTI: And you were passing along information about that interview to Brian Albert, were you not?
MR. MCCABE: Yes, I was letting him know that Kerry was being interviewed.
MR. YANNETTI: And you were telling him things that she was saying, correct? Remember you said the whole dead comment was just told?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. YANNETTI: In any case, we’re going to move onto the very last discussion that I’d like to ask you about. Earlier that day, February 1st of 2022, at 12:50 p.m. and 37 seconds Brian Albert texted the group which would have again been his wife, Nicole, your wife, Jennifer, and you, and that text was --
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Which bubble on the screen?
MR. YANNETTI: 0-2-1-4-8.
JUDGE CANNONE: On which page?
MR. YANNETTI: That’s the page, 0-2-1-4-8, and the bubble is the second of the three bubbles.
JUDGE CANNONE: I don’t have it. I don’t know what the objection is pertaining to. Jurors, I apologize that this is taking so long. You know, Mr. Yannetti, why don’t you --
MR. YANNETTI: A copy for the Court, Your Honor.
JUDGE CANNONE: So, you’re objecting to it so I’m not going to let you just say what it is. You can show it to the witness. Which one is this?
MR. YANNETTI: Second bubble on 0-2-1-4-8. And the third bubble on 0-2-1-4-8 and then the first bubble on 0-2-1-4-9, that’s all I’ll be asking about.
JUDGE CANNONE: I’ll won’t allow, based on the objection to the Commonwealth the second bubble on 0-2-1-4-8. I will allow, who is the author of the third bubble?
MR. YANNETTI: I think --
JUDGE CANNONE: 0-2-1-4-8?
MR. YANNETTI: No, the second bubble on 0-2-1-4-8.
JUDGE CANNONE: Is not allowed into evidence.
MR. YANNETTI: I need to be heard on that then.
JUDGE CANNONE: All right, I’ll hear you at sidebar. You know what, the jurors I’m going to send back.
COURT OFFICER: Please rise for the jury.
(Jury out.)
COURT OFFICER: You may be seated.
(Sidebar commences:
JUDGE CANNONE: All right. So --
MR. JACKSON: We have to wait for Mr. Lally.
JUDGE CANNONE: All right. So the Commonwealth objected to the second bubble. I'm sustaining the objection. I won't really hear you on that, but what I want to do at sidebar is figure out where you're going with all of this. So there's an objection to these coming in at all. I don't want you to have the witness read something that's then objected to and tell the jurors disregard it. Disregard it. You kind of been doing a lot of that, asking questions that you know, perhaps, aren't appropriate and having me strike them. So I don't want to do it with this, and I'm certainly not going to put these up. And, Mr. Jackson, if you're doing the cross of Ms. McCabe this afternoon, I expect that this part of it to go much more smoothly than it's going now. So where are we going with these?
MR. YANNETTI: I have -- I want to ask him just about this bubble, that bubble, and the top bubble --
JUDGE CANNONE: Okay. So I sustained the Commonwealth's objection to that one. I will allow you to do the bottom bubble. And then what's the next one?
MR. YANNETTI: That's it. That's the answer to that bubble. That's Mr. McCabe, and then the answer comes from Mr. Albert.
JUDGE CANNONE: Okay. That's it. Then we're done with all of this.
MR. YANNETTI: I'm done.
JUDGE CANNONE: All right. So the Commonwealth's objection is noted. Nancy, we need this marked for identification. Does the witness have this in front of him at this point?
MR. YANNETTI: Yes, he does. And I guess the only other questions is, are these documents being introduced into evidence?
JUDGE CANNONE: He's testified to those so --
MR. YANNETTI: I know --
JUDGE CANNONE: I'm not letting you display them on the board because this is almost a two cross-examination of a witness. It's in evidence.
MR. YANNETTI: It's in evidence.
JUDGE CANNONE: But you're not going to display them. The witness just testified. He doesn't have to read them. You can have him --
MR. YANNETTI: Again, just so I'm clear, it's in evidence in terms of the documents, not just his testimony.
JUDGE CANNONE: If I get a form that I am satisfied the jurors can see --
MR. YANNETTI: Fair enough.
JUDGE CANNONE: -- what's been testified to, you can show that bubble can be in evidence.
MR. YANNETTI: Great. That's all I wanted.
JUDGE CANNONE: And the Commonwealth is objecting to that?
MR. LALLY: Yes.
JUDGE CANNONE: Okay. All right. So let's move this along.
MR. YANNETTI: All done.
end of sidebar.)
COURT CLERK: Can I have the jury back, please?
JUDGE CANNONE: If you all plan on doing this with the next witness, I’d ask you to let Mr. Lally know each one of these you intend to use so that we can avoid all of this.
MR. YANNETTI: Okay.
JUDGE CANNONE: And if you have a copy for me that would be helpful for objections.
MR. YANNETTI: I’ll --
COURT OFFICER: Court, jurors entering. Court is back in session. Please be seated.
JUDGE CANNONE: Okay, Mr. Yannetti.
MR. YANNETTI: Thank you, Your Honor.
MR. YANNETTI: Mr. McCabe, when we broke I was just about to ask you about the last exchange here. You will agree with me that on February 1st of 2022 at 12:51 and 49 seconds you texted the group chat to say, “Ask Chris to ask some questions” correct?
MR. MCCABE: Yup, I’m reading it right now, yes, that’s correct.
MR. YANNETTI: And who was the Chris you were referring to?
MR. MCCABE: That would be Chris Albert.
MR. YANNETTI: Brian’s brother, correct?
MR. MCCABE: That is correct.
MR. YANNETTI: And then you then texted your wife, Brian Albert and Nicole Albert, Quote, “Tell them the guy never went in the house” correct?
MR. MCCABE: That’s part of the same text, yes.
MR. YANNETTI: Mr. McCabe, who was the guy that you were referring to, does he have a name?
MR. MCCABE: That would be John; John O’Keefe.
MR. YANNETTI: When you told the group to tell them the guy never went in the house that was you talking about how you should all get your stories straight, correct?
MR. MCCABE: No.
MR. YANNETTI: You would agree with me that your stories are all straight in terms of the guy never went in the house, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that?
MR. MCCABE: John never went in the house. It’s not a story, it’s a fact.
MR. YANNETTI: Well, when you said, “Tell them the guy never went in the house” Brian Albert was on that exchange still, was he not? He was still part of the group text?
MR. MCCABE: Yes, Brian is on the exchange.
MR. YANNETTI: And Brian Albert was the one to respond, wasn’t he?
MR. MCCABE: Which page is it?
MR. YANNETTI: He responded, did he not?
MR. MCCABE: Yes, he did.
MR. YANNETTI: At that point you knew Brian Albert was the oldest brother of the Albert family, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: The oldest sibling in that family, correct?
MR. MCCABE: Yes, that’s correct.
MR. YANNETTI: In his response to your instructions that his younger brother Chris should say that John O’Keefe never went in the house or the guy never went in the house, you would agree with me that he responded with one word, correct?
MR. MCCABE: Yes, he did.
MR. YANNETTI: And in response to you saying the guy never went in the house Brian Albert’s response was, “Exactly” correct?
MR. MCCABE: Yes, that was his response.
MR. YANNETTI: We’re done here.
JUDGE CANNONE: Commonwealth, any redirect?
MR. LALLY: Just briefly, Your Honor.