Commonwealth v. Read — Trial ArchiveJennifer McCabe — Redirect/Recross
666 linesREDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good morning, ma’am.
MS. MCCABE: Good morning.
MR. LALLY: Going back a little bit you were asked some questions about the Life 360 application that you had on your phone, is that right?
MS. MCCABE: Yes.
MR. LALLY: And you’re familiar with that app and familiar with sort of using that app to see where your children are during various times, is that correct?
MS. MCCABE: Yes.
MR. LALLY: And from your experience of using that app how accurate is it as far as location and a time or anything with regard to it?
MS. MCCABE: Pretty accurate, varying some of their locations and sometimes weather.
MR. LALLY: Have you ever had instances in which you were told someone was somewhere and they were not there?
MS. MCCABE: Yes.
MR. LALLY: And you were asked some questions about Ryan Nagel’s truck, correct?
MS. MCCABE: Yes.
MR. LALLY: Do you know or did you on January 29th, 2022, did you know Ryan Nagel?
MS. MCCABE: I did not.
MR. LALLY: Did you know what kind of vehicle he drove?
MS. MCCABE: I did not.
JUDGE CANNONE: Keep your voice up, Mr. Lally, please.
MR. LALLY: (By Mr. Lally) Do you know whether or not that was actually somebody else’s truck?
MS. MCCABE: I do not know.
MR. LALLY: Do you know whether or not on January 29, 2022, Ryan Nagel had a friend named Ricky?
MS. MCCABE: I do now.
MR. LALLY: But on the 29th did you?
MS. MCCABE: No.
MR. LALLY: On the 29th, did you have any idea what kind of vehicle he drove?
MS. MCCABE: No.
MR. LALLY: This person you didn’t know?
MS. MCCABE: Right; correct.
MR. LALLY: And when you looked outside, as far as the truck was concerned did you even see a truck?
MS. MCCABE: I just saw lights, a vehicle. I didn’t focus much attention to what was over there.
MR. LALLY: So fair to say you weren’t paying attention to a truck you didn’t see of a person you didn’t know that you had never seen before, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to that form.
MR. LALLY: (By Mr. Lally) Now, you were asked some questions about texts between Brian Nagel and Julie Nagel, correct?
MS. MCCABE: Yes.
MR. LALLY: As far as when those texts were sent you don’t know, do you?
MS. MCCABE: Can you clarify?
MR. LALLY: Sure. Do you know when Ryan Nagel texted his sister, Julie, before you had even pulled onto Fairview Road?
MS. MCCABE: They were texting about his arrival.
MR. LALLY: Texting about his arrival but do you know where Ryan Nagel was when he was texting Julie about his arrival?
MS. MCCABE: I believe he was outside.
MR. LALLY: But you don’t know, is that fair to say?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: (By Mr. Lally) Do you know whether or not Ryan Nagel was on Cedarcrest or somewhere else when he texted Julie that he was about to arrive or that he was there?
MR. JACKSON: Objection.
JUDGE CANNONE: No, I’ll allow it. Do you know that?
MS. MCCABE: I don’t know that, no.
MR. LALLY: (By Mr. Lally) As far as the defendant’s motor vehicle and the truck that Mr. Nagel was in did you see either of those vehicles arrive in front of Fairview?
MS. MCCABE: Yes.
MR. LALLY: You saw them pull up?
MS. MCCABE: No, actually, are you asking if I saw them pulling up or if I saw them when they arrived? I did not see them pulling up.
MR. LALLY: So at some point after they arrived your attention was drawn outside?
MS. MCCABE: Yes.
MR. LALLY: When we’re talking about you going to the door and looking outside how long a period are you looking out?
MS. MCCABE: Not long.
MR. LALLY: Would you describe it as either a glance or more staring intently out the front of the house?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: (By Mr. Lally) How would you describe the manner in which you were looking out at the SUV in front of the house?
MS. MCCABE: I would go to the front door, I look out. I saw the vehicle. I believe I sent a text and I went and sat back down.
MR. LALLY: Now, in any of those times that you went to the door do and you know how many times you went to the door?
MS. MCCABE: I don’t know exactly.
MR. LALLY: At least twice, is that correct?
MS. MCCABE: At least twice, yes.
MR. LALLY: Now in those at least twice that you saw the vehicle and once that you saw the vehicle was gone, correct?
MS. MCCABE: Yes, so I guess actually it was more than twice because I saw the vehicle move, as well.
MR. LALLY: And when you say as far as you saw the vehicle move, did you see the vehicle physically move or was it much later and then you came back later and it was in a different place?
MS. MCCABE: It was in one place and when I came back it was further up.
MR. LALLY: Now at any of those points in time when you glanced out the storm door did you see anybody outside of the vehicle?
MS. MCCABE: No.
MR. LALLY: Could you see inside of the vehicle?
MS. MCCABE: No.
MR. LALLY: Did you see anybody outside other than Julie Nagel on the front lawn or front walkway or anything else?
MS. MCCABE: No.
MR. LALLY: At any point in time while you were at 34 Fairview that night did you see John O’Keefe?
MS. MCCABE: No.
MR. LALLY: At any point in time when you texted John O’Keefe after you arrived at Fairview did John O’Keefe respond?
MS. MCCABE: No.
MR. LALLY: At any point in time after you arrived at Fairview or after you hung up from the 12:18 a.m. call in which you were describing where 34 Fairview was in reference to (c) ’s house did you ever hear from John O’Keefe ever again?
MS. MCCABE: No.
MR. LALLY: And during that about twenty minute or so period of time when Mr. O’Keefe or the defendant’s SUV is in front of the house you never heard anything from John O’Keefe, correct?
MS. MCCABE: Correct.
MR. LALLY: And did that strike you as unusual as far as him not responding?
MS. MCCABE: I thought it was strange but then I thought they might have just decided to go home or had gotten into a fight or (c) wanted him home.
MR. LALLY: Now, you’re looking out through the storm door and you see a Lexus with its lights on, right?
MS. MCCABE: Correct.
MR. LALLY: From that area, that secondary area up by the flagpole and the fire hydrant that’s the same area where you found John O’Keefe the next morning, correct?
MS. MCCABE: Correct.
MR. LALLY: And with reference to that area are there any lights as far as streetlights or anything that you’re aware of in that area?
MS. MCCABE: No, it’s a dark area in the corner of the lot.
MR. LALLY: Now at any point in time were you looking or were you expecting to see John’s body on the lawn?
MS. MCCABE: Absolutely not.
MR. LALLY: Fair to say that when you’re looking in the dark in the snow from the storm door out towards the vehicle not the same conditions as if you’re sitting in a courtroom today about ten feet away from somebody with lights on, correct?
MS. MCCABE: Correct.
MR. LALLY: In fact, when you go back to Fairview the next morning, and again, who was the person who requested or directed to go to Fairview?
MS. MCCABE: Karen.
MR. LALLY: And so when you go to Fairview along with Ms. Roberts at the defendant’s direction sometime around 6:00 a.m. when was it that you first saw Mr. O’Keefe?
MS. MCCABE: I wasn’t the first one to first see him, Karen was.
MR. LALLY: So she’s banging on the door asking to be let out. She goes directly over to the body, correct?
MS. MCCABE: Correct.
MR. LALLY: Neither you nor Ms. Roberts, you didn’t see Mr. O’Keefe on the lawn until after she did that, correct?
MS. MCCABE: Correct.
MR. LALLY: And that was after you had already sort of a little driven a little bit past where he was, correct?
MS. MCCABE: Correct.
MR. LALLY: Now with reference to, you get home from Fairview around 2:00 a.m. or somewhere in that timeframe, you go up to bed and you do some searches on your phone, correct?
MS. MCCABE: Correct.
MR. LALLY: So there’s a Safari tab or an application on your phone, that’s where you accessed Google?
MS. MCCABE: Yes.
MR. LALLY: Is that typically where you would access Google?
MS. MCCABE: Yes.
MR. LALLY: And you were looking at Ozone Basketball. You were also looking at Hockomock, is that correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: (By Mr. Lally) What if anything else were you looking at beyond the Ozone Basketball you were talking about?
MS. MCCABE: We had had an exciting game earlier in the night against a local town that has a very good basketball program so I went on Hockomock Sports to look at the recap and typically I’ll do that to see how other teams did, et cetera.
MR. LALLY: And around that same time, is that correct?
MS. MCCABE: Correct.
MR. LALLY: Now, within when you did that as far as looking things up on Google were you opening up new tabs within Safari as you were looking at different websites and different topics?
MS. MCCABE: No.
MR. LALLY: And when you went to bed or you went to sleep that evening at some point you turned off your phone, right?
MS. MCCABE: Correct.
MR. LALLY: Did you X out that box, that Safari tab that you were doing those searches with regard to Ozone or Hockomock?
MS. MCCABE: No, I used to always leave my tabs open and my kids would yell at me.
MR. LALLY: As far as having multiple tabs open, is that correct?
MS. MCCABE: Drains my battery, et cetera, yes.
MR. LALLY: So then fast-forward to sometime after 6:00 a.m., you’re on the side of the road and the defendant asks you to conduct or look up something with regard to hypothermia or how long to die in the cold, correct?
MS. MCCABE: Correct.
MR. LALLY: When you opened that up and you go into Google did you go into a new tab or did you sort of go into what you had already open in a prior tab?
MS. MCCABE: I went to what I already had opened.
MR. LALLY: And that’s where you preformed the search, is that right?
MS. MCCABE: Excuse me?
MR. LALLY: That’s where you performed the search that you were just being asked about?
MS. MCCABE: Yes.
MR. LALLY: And you never made any search like that at 2:27 in the morning, correct?
MS. MCCABE: I did not, no.
MR. LALLY: Now, again, you’ve been shown what’s been called a Cellebrite extraction report, correct?
MS. MCCABE: Yes.
MR. LALLY: Are you familiar with how many Cellebrite extraction reports were conducted to your phone?
MS. MCCABE: I think a couple. I’m actually not sure.
MR. LALLY: Prior to January 29, 2022, had you ever seen a Cellebrite extraction report?
MS. MCCABE: No.
MR. LALLY: As you sit here today do even really know what that is?
MS. MCCABE: Not really, no.
MR. LALLY: Do you know what a WAL file is?
MS. MCCABE: No.
MR. LALLY: Do you know what an SQulite data base is?
MS. MCCABE: No.
MR. LALLY: Do you know what a Knowledge Profile C Database is?
MS. MCCABE: No.
MR. LALLY: Do you know how information is stored and kept within your cellphone?
MS. MCCABE: No.
MR. LALLY: Now, as far as, well, let me ask you this. You have four children and you were a mom, a homemaker, correct?
MS. MCCABE: Correct.
MR. LALLY: At some point you did work, though, right?
MS. MCCABE: Yes.
MR. LALLY: What did you do for work?
MS. MCCABE: I was an elementary school teacher.
MR. LALLY: What grade did you teach?
MS. MCCABE: Fifth.
MR. JACKSON: Objection.
JUDGE CANNONE: One question and we’ll see where this goes.
MR. LALLY: (By Mr. Lally) What grade did you teach?
MS. MCCABE: Fifth.
MR. LALLY: And how long did you teach fifth grade?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to see counsel at sidebar. Folks, feel free to stand up.
(Sidebar commences:
JUDGE CANNONE: So why don't you tell me your objection.
MR. JACKSON: Relevance.
JUDGE CANNONE: Where are you going with this?
MR. LALLY: It's going to the fact that she has no familiarity whatsoever with Cellebrite, phone extractions, or anything of that like. She's had no prior experience with it personally, professionally, or anything else.
JUDGE CANNONE: I'm not sure that's the way to do it.
MR. JACKSON: I don't think it is, either. He's trying to humanize her and make her this little school teacher. It's completely irrelevant.
JUDGE CANNONE: So you can do that other ways, but not that she was an elementary school teacher.
MR. LALLY: Okay.
end of sidebar.)
MR. LALLY: (By Mr. Lally) If I could take you back to around 4:53 in the morning is when you get that first call from (c) is that correct?
MS. MCCABE: Correct.
MR. LALLY: You answer that call and the defendant is then put on the line, correct?
MS. MCCABE: Yes.
MR. LALLY: So what is the first sort of iteration of the story that the defendant tells you happened the night before?
MS. MCCABE: That they got into a fight, she left him at the Waterfall and he never came home.
MR. LALLY: At some point later you confront her with that you saw the vehicle out in front of the house, correct?
MS. MCCABE: Correct.
MR. LALLY: What does the defendant’s story change to at that point?
MS. MCCABE: That they went there. It changed multiple times. I’m not sure exactly. She said at one point, Oh my God, I don’t even remember going there. She was telling other people that he was dead that a plow hit him. The story changed multiple times that morning.
MR. LALLY: On cross-examination you were played a voice mail. Do you know whose phone that voice mail was from?
MS. MCCABE: They never said, no.
MR. LALLY: Fair to say that you’re on 911 in the background of that phone call, correct?
MS. MCCABE: Correct.
MR. LALLY: So it wasn’t your phone?
MS. MCCABE: Correct.
MR. LALLY: There’s two other people beyond that as far as Ms. Roberts and the defendant there, correct?
MS. MCCABE: Correct.
MR. LALLY: Was Kerry on the phone at all that you saw?
MS. MCCABE: No.
MR. LALLY: Okay, and so with reference to the timing of that phone you had called 911 and you were on the phone with 911 at the time that that recording starts, right?
MS. MCCABE: Correct.
MR. LALLY: So you had gotten out of the car, you had gone around and then seen where the defendant had run over to Mr. O’Keefe, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: As to the form it’s sustained.
MR. LALLY: (By Mr. Lally) What had you done before you placed that 911 call?
MS. MCCABE: I got out of the car, I ran behind the car, over to the body, I was in a state of shock for a couple of seconds. Kerry and I looked at each other and I said, I’m going to call 911.
MR. LALLY: And there was a period of time when you made the call before it connected and you said you got bounced around to different agencies, correct?
MS. MCCABE: Yes.
MR. LALLY: This is after the defendant has hit the door and run over from the vehicle over to Mr. O’Keefe’s body, right?
MS. MCCABE: Yes.
MR. LALLY: So, it’s not your phone and it’s not Ms. Roberts’ phone, the fair inference is that it’s the defendant’s phone, correct?
MS. MCCABE: Correct.
MR. LALLY: So this phone call had been made before it started recording at some point before you had even gotten out of the car and made your way over to Mr. O’Keefe then in the state of shock for a few seconds, called 911, connected to 911, so at some point it had to have been made in the car, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Ask it differently.
MR. LALLY: (By Mr. Lally) Do you know when that voice mail or that recording that you heard, do you know when that call was placed?
MS. MCCABE: I don’t.
MR. LALLY: At the time that you are making the 911 call where is the defendant in relation to the vehicle?
MS. MCCABE: She is over with Mr. O’Keefe.
MR. LALLY: You mentioned the part beyond the 911 call where you heard yourself talking you’re at the rear of Ms. Roberts’ vehicle?
MS. MCCABE: Yes.
MR. LALLY: Why are you at the rear of Ms. Roberts’ vehicle?
MS. MCCABE: In the beginning I’m at the rear gathering towels or blankets and then a few times I go to the rear because I’m trying to speak with the 911 and Karen is screaming hysterically and then Kerry starts screaming at her to calm down. It was quite chaotic so I was moving away so that I could be clear with the operators.
MR. LALLY: Now, at some point you went into your sister’s house at 34 Fairview, right?
MS. MCCABE: Yes.
MR. LALLY: Why did you go in?
MS. MCCABE: Officer Lank asked me to go in and wake them up.
MR. LALLY: So you were asked to go in there by the police to wake them up?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: (By Mr. Lally) At some point you indicated that you had called Officer Lank to come back to the house, right?
MS. MCCABE: Yes.
MR. LALLY: How did you get his number again?
MS. MCCABE: Julie Albert.
MR. LALLY: As far as were you aware whether or not Brian Albert, Nicole Albert or any of the other people that were present had Officer Lank’s number?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: (By Mr. Lally) Why did you ask Julie Albert and not Brian Albert or Nicole Albert?
MS. MCCABE: Because I knew she was the only one that had his number.
MR. LALLY: You were asked some questions about when you were on scene and you indicated in your testimony on direct that you heard the defendant say, “I hit him, I hit him, I hit him” correct?
MS. MCCABE: Yes.
MR. LALLY: You also earlier in your testimony had indicated that earlier in the morning the defendant had phrased that differently as far as, Could I have hit him, or Did I, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to the form.
MR. LALLY: (By Mr. Lally) You heard the defendant make a variety of statements over the course of the morning, correct?
MS. MCCABE: Yes.
MR. LALLY: And more to my point as far as, you recall testifying at another hearing under oath in June of 2023, correct?
MS. MCCABE: Yes.
MR. LALLY: Do you recall being asked some questions initially about this topic?
MR. JACKSON: Objection.
JUDGE CANNONE: Allowed.
MR. JACKSON: Sidebar?
JUDGE CANNONE: Okay.
(Sidebar commences:
JUDGE CANNONE: What's the objection, Mr. Jackson?
MR. JACKSON: It's hearsay. I expect that Mr. Lally will say it's prior inconsistent statement, but it's not because it post-dates the original statements. It's not prior to the statement that she was impeached significantly on, so he does not have a right to get in a consistent statement in June of 2023, when all her inconsistent statements were in January, February, and April of 2022.
JUDGE CANNONE: All right. You mentioned yesterday about her testifying yesterday.
MR. JACKSON: I don't think I mentioned the -- I don't -- I could be wrong because it was lengthy, but I don't --
JUDGE CANNONE: Mr. Lally, what do you say? I'll look for it, Mr. Jackson, if I recall --
MR. JACKSON: It could be my failing memory and age. I don't remember bringing up the June hearing back then on the issue of (indiscernible).
MR. LALLY: On that specific issue? No. But when it comes to the prior inconsistent statements, counsel wanted to introduce prior inconsistent statements, I'm then allowed to rehabilitate the prior inconsistent statements, especially sworn ones under oath.
MR. JACKSON: A prior inconsistent statement has to predate the inconsistent statements.
JUDGE CANNONE: So what I was looking for yesterday you mentioned it, now she's bringing it up today so prior consistent would be prior to yesterday. I'm just trying to find that testimony. If the Commonwealth doesn't have it, I'm not going to -- it's only prior consistent as to yesterday and you were challenging her on --
MR. JACKSON: Correct.
JUDGE CANNONE: -- yesterday.
MR. JACKSON: What she said on Friday, exactly. So impeached her with what she previously said to that.
JUDGE CANNONE: No, I understand. But I thought there was some recent fabrication on Friday which would give prior to Friday as a prior consistent statement.
MR. JACKSON: I believe that the prior consistent statement has to predate the inconsistent statements. In other words, we start with the foundation of the statement.
JUDGE CANNONE: And ordinarily it would except for yesterday you made it sound like (indiscernible).
MR. JACKSON: I didn't. I didn't. I just said I was very careful not to say you've never brought it up before. I just said, on Friday, you said X, but previous to this, you said Y.
MR. LALLY: And that's what I believed happened as far as there was a specific question about you've never said anywhere under oath or anywhere before those statements that you said on the stand the other day.
MR. JACKSON: That's absolutely not true. I wouldn't do that. That would be malpractice if I did that. I would never say that because I know that she did say that.
JUDGE CANNONE: Unethical is different than malpractice.
MR. JACKSON: I wouldn't do that.
JUDGE CANNONE: One is much greater than the other.
MR. JACKSON: Understood. No, I did not and would not do that. I would not make a false -- knowingly false statement that she didn't (indiscernible). I was careful to move around that.
JUDGE CANNONE: What's the statement you intend to put in, Mr. Lally?
MR. LALLY: Her statement that's entirely consistent with what her testimony was.
JUDGE CANNONE: What is the specific statement?
MR. LALLY: The specific statement is -- so there's two different portions within the federal grand jury testimony. It's on page 816 that --
JUDGE CANNONE: It's on what page?
MR. LALLY: Eight sixteen is the first one.
end of sidebar.)
JUDGE CANNONE: Jurors, feel free to stand up and stretch. We're trying not to send you out of the courtroom, so please just give us a minute.
(Sidebar commences:
JUDGE CANNONE: All right. Where is that?
MR. LALLY: Right at the bottom of the page.
JUDGE CANNONE: Mr. Jackson, I'm going to let this in subject to I will strike it if it's not, but my memory was that the way it was built up about Friday being a recent fabrication.
MR. JACKSON: Okay. I understand.
JUDGE CANNONE: We'll have time, and we can go through and we'll -- I mean, I'll strike it.
MR. JACKSON: Understood.
JUDGE CANNONE: However you want me to strike it.
MR. JACKSON: Understood. Thank you.
end of sidebar.)
MR. LALLY: May I proceed, your Honor?
JUDGE CANNONE: Yes, go ahead.
MR. LALLY: (By Mr. Lally) Ms. McCabe, as I was asking before in June of 2023 you testified in another proceeding, correct?
MS. MCCABE: Correct.
MR. LALLY: And you were asked questions specifically about those statements that you heard the defendant say on the morning on January 30th, correct?
MS. MCCABE: Correct.
MR. LALLY: Do you recall specifically what your testimony was in regard to that portion of, in regard to those questions?
MS. MCCABE: I don’t recall specifics. I know what I know. I know it happened.
MR. LALLY: May I approach, your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: (By Mr. Lally) Now I’m giving you two pages. I direct your attention to the bottom of the first page and then into the next page. If you could review that to yourself and look up when you’re done.
JUDGE CANNONE: What page again, Mr. Lally?
MR. LALLY: Your Honor, 816 and 817.
JUDGE CANNONE: Thank you.
MR. LALLY: May I approach, your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: (By Mr. Lally) Ms. McCabe, is your memory refreshed as to what you said in that prior proceeding in regard to those statements?
MS. MCCABE: Yes.
MR. LALLY: What did you say?
MS. MCCABE: What did I say in that?
MR. LALLY: Yes.
MS. MCCABE: I told them that Karen looked straight at me and said, I hit him, I hit him, I hit him and I said that there was I believe an EMT who overheard it, as well.
MR. LALLY: Now, do you recall in that same prior proceeding being asked some questions at different times the defendant saying different iterations of that same statement?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to form. No leading, Mr. Lally.
MR. LALLY: (By Mr. Lally) With respect to that prior, testimony in that prior proceeding, what if anything else were you asked about statements the defendant made to you that morning?
MS. MCCABE: I was asked what were some of the statements that Ms. Read had made and it was like repeat. Did I hit him. Could I have hit him. Is he dead. Is he dead. Is he dead. Could I have hit him. Did I hit him. I have a cracked taillight and then her, I hit him, I hit him, I hit him.
MR. LALLY: And so with respect to questions as far as Did I hit him or Could I have hit him and the statement, I hit him, those were at different times, correct?
MS. MCCABE: Correct.
MR. LALLY: Now you met with Trooper Proctor on January 29th, is that correct?
MS. MCCABE: Correct.
MR. LALLY: Was that the first time that you had met him?
MS. MCCABE: Correct.
MR. LALLY: Who, if anyone, was with him when you met him?
MS. MCCABE: I believe it was Trooper Yuri.
MR. LALLY: Subsequent to that date did you meet with other troopers in the case?
MS. MCCABE: Yes.
MR. LALLY: By other troopers I mean, not Trooper Proctor and not Trooper Yuriy?
MS. MCCABE: Yes.
MR. LALLY: And with respect to meeting with other troopers was it at that point that they had talked to you about taking your phone?
MS. MCCABE: Correct.
MR. LALLY: They asked you for your phone, is that correct?
MS. MCCABE: I had shared my Life 360 and my texts and they asked if they could take a copy of my phone.
MR. LALLY: And did you agree to that?
MS. MCCABE: I agreed to it, yes.
MR. LALLY: And were you presented a form at all in regard to you agreeing to hand over your phone?
MS. MCCABE: Yes.
MR. LALLY: And beyond what you had testified to earlier as far as forensics were there any limitations as far as what they could look at or take from your phone?
MS. MCCABE: No limitations.
MR. LALLY: May I approach, your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: (By Mr. Lally) Ma’am, I’m showing you a document again. I just ask you to look at it and look up when you’re done. Just in general, ma’am, do you recognize that?
MS. MCCABE: Yes.
MR. LALLY: What do you recognize that to be?
MS. MCCABE: This was the consent form for my phone.
MR. LALLY: Is that the form you filled out with the troopers with regard to giving over your phone?
MS. MCCABE: Correct.
MR. LALLY: May I approach again, your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce this as the next exhibit.
JUDGE CANNONE: Is there any objection, Mr. Jackson?
MR. JACKSON: No objection.
JUDGE CANNONE: Okay, thank you.
(Consent Form, Marked, Exhibit No. 100.)
MR. LALLY: (By Mr. Lally) Now again, Ms. McCabe, initially following the events of initially that morning around 6:00 a.m. or so at some point you were seeking or you had actually asked the defendant for Kerry Roberts’ phone number, correct?
MS. MCCABE: Yes.
MR. LALLY: And why was it that you were looking for Kerry’s number, specifically?
MS. MCCABE: Driving conditions were terrible. She was driving to Braintree to pick up Mr. and Mrs. O’Keefe and then they were heading to the hospital and I was just looking to see how John was doing.
MR. LALLY: Now you had mentioned, at some point, did you speak with Ms. Roberts that morning with regard to updates as far as how John was doing?
MS. MCCABE: Yes.
MR. LALLY: You mentioned that later on either that day or the next day that you had gone over to Mr. O’Keefe’s house with Ms. Roberts, correct?
MS. MCCABE: Yes.
MR. LALLY: Who was driving at the time that you went over to the O’Keefe’s house with Ms. Roberts?
MS. MCCABE: Kerry was driving.
MR. LALLY: So when you left the O’Keefe’s house where was it that you went?
MS. MCCABE: Kerry went to drop her daughter off at her friend’s house, the daughter of Mike Lank.
MR. LALLY: And you were just in the front passenger’s seat of that vehicle, correct?
MS. MCCABE: Yes.
MR. LALLY: You had mentioned as far as getting together with Ms. Roberts at the request of someone to talk about a timeline, correct?
MS. MCCABE: Yes.
MR. LALLY: Can you explain to the jury sort of how that came about or who was making that request?
MS. MCCABE: Kerry called me and she told me that she had talked to Peggy and Peggy had --
MR. JACKSON: Objection.
JUDGE CANNONE: No, I’m going to allow it.
MS. MCCABE: And Peggy had suggested to Kerry, you know, you guys should write a timeline. You know, you don’t want to forget anything, you know, when the time comes, meaning when the trial comes you don’t want to forget anything that happened.
MR. LALLY: (By Mr. Lally) Just to be clear, when you say Peggy, who are you referring to?
MS. MCCABE: Mrs. O’Keefe.
MR. LALLY: John’s mother?
MS. MCCABE: John’s mother, correct.
MR. LALLY: You were asked some questions about a subsequent date as far as hearing bits and pieces or portions of Ms. Roberts’ statement to troopers at your home correct?
MS. MCCABE: Correct.
MR. LALLY: Do you know whether or not that was the first time Ms. Roberts had talked to troopers or officers or anyone from the Canton Police or the state police?
MS. MCCABE: I believe on the 29th in the afternoon troopers went to her house so that would have been the first time.
MR. LALLY: So the time that she was at your home and speaking to troopers that would have been the at least the second time she had talked to troopers, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: (By Mr. Lally) Now with reference to Ms. Roberts and her phone, was Ms. Roberts at the time that you handed your phone over to the troopers was Ms. Roberts present there, as well?
MS. MCCABE: Yes.
MR. LALLY: What, if anything, did you see Ms. Roberts do with respect to her phone and the troopers?
MS. MCCABE: She turned her phone over, as well, and signed the consent.
MR. LALLY: Now during that time you had indicated that you had heard a statement that you said horrified you in some way, is that correct?
MS. MCCABE: From Ms. Roberts?
MR. LALLY: Yes.
MS. MCCABE: Correct.
MR. LALLY: And what was that, what was she talking about?
MR. JACKSON: Objection.
JUDGE CANNONE: The door has been opened, Mr. Jackson. That means you can answer.
MS. MCCABE: Okay.
MS. MCCABE: So basically Kerry is a talker and once she started --
MR. JACKSON: Objection.
JUDGE CANNONE: I think, just focus on what she said.
MS. MCCABE: Okay. A She said something like John really loved Amy, and in my eyes Karen was just a baby-sitter with benefits.
MR. LALLY: And is that what made it memorable to you as far as what transpired at that time?
MS. MCCABE: Yes.
MR. LALLY: At any point in time did you ever coordinate your statement or Ms. Roberts’ statements with her prior to testifying at any hearing or any proceeding at any point in time?
MS. MCCABE: No.
MR. LALLY: Let me ask you, when you came to the area of 34 Fairview Road around 6:00 a.m. and you saw Mr. O’Keefe, was he in the same clothes that you had seen him in earlier?
MS. MCCABE: He had jeans and I believe the same shirt on, yes.
MR. LALLY: And nothing additional as far as a jacket or anything like that that you saw?
MS. MCCABE: Not that I recall.
MR. LALLY: Now, again, as you were driving down Fairview Road if the defendant did not bang on the door and essentially jump out of the car and make a B-line over to Mr. O’Keefe would you have stopped the car?
MS. MCCABE: No.
MR. LALLY: Do you recall when you were leaving 34 Fairview Road earlier as far as sometime between 1:30-1:45 when Mr. McCabe is driving, do you recall whether or not the roads were plowed or treated or anything that you saw at that time?
MS. MCCABE: I know there was snow on them but I can’t recall specifics.
MR. LALLY: Now as far as the defendant coming over to your house shortly after 5:00 a.m. was that something that you were expecting at the time?
MS. MCCABE: No.
MR. LALLY: And what was it prior to the defendant showing up and sort of screaming in front of your house, what was your sort of plan as far as based on the information that Ms. Read had told you?
MS. MCCABE: My husband and I were going to go out and we were going to drive over to Tom Beatty’s house to see if John was there.
MR. LALLY: Now, as far as the 911 call that you were making that information that you were providing, what was that based on?
MS. MCCABE: What I was seeing.
MR. LALLY: But as far as how Mr. O’Keefe had come to be there at 34 Fairview Road, when you’re communicating any of that to the 911 operator or to the officer on scene was that from your observations when you were inside 34 Fairview after the Waterfall or from some other source?
MS. MCCABE: Well, it was from what Karen was saying as we were driving there.
MR. LALLY: So as far as him being dropped off or anything like that, that came from the defendant, correct?
MS. MCCABE: Correct.
MR. LALLY: Now as far as you had been asked and you had testified about going over to Trooper Proctor’s house to meet with his wife, correct?
MS. MCCABE: Correct.
MR. LALLY: And you testified about certain incidents of harassment that you had undergone as well as Mrs. Proctor, is that correct?
MS. MCCABE: Correct.
MR. LALLY: How long had that been going on for at that point?
MS. MCCABE: At that point it started in April and now I believe I went over there in September.
MR. LALLY: What if anything was the frequency of the harassment, was it sporadic or how often were you –-
MS. MCCABE: Daily, sometimes hourly.
MR. LALLY: In addition to what you’ve already testified --
MS. MCCABE: Uh-huh.
MR. LALLY: -- what if any other incidents do you recall specifically involving either you or your children or your home?
MS. MCCABE: People come by my house. They take video. They scream. They’ve gone to my child’s sporting events and called me names. They’ve written letters to my daughters’ colleges and said that they shouldn’t allow them to play and then they’ve attached these horrific articles that have been complete lies about all of us. They send me Facebook messages. They call my phone, home phone and cell phone all hours of the night. They tell me to kill myself. They tell me I’m a terrible mother. They harass my children. My daughter testified here the other day. We didn’t even get out of the building and people were, you know, saying horrendous things that she’s a liar, you know, your mother should die. It’s just, it’s unimaginable what my entire family is going though. I go to the beach, they take pictures. They post it. They threaten that there are eyes everywhere, I’ll never be able to live a normal life again. I am a witness. That’s all I am. I am not on trial. I am a witness and these people are terrorizing me.
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to that part. I’ll strike that part. Everything else will stay, okay?
MS. MCCABE: Okay.
MR. LALLY: (By Mr. Lally) So your understanding that Mrs. Proctor has sustained similar issues as you have?
MS. MCCABE: Correct.
MR. LALLY: Now again, Trooper Michael Proctor, you never met him prior to January 29th, 2020, correct?
MS. MCCABE: I had never met him prior, no.
MR. LALLY: And the time that you went over to meet with Elizabeth Proctor was Trooper Michael Proctor home at that time?
MS. MCCABE: No, he was not home.
MR. LALLY: And had you ever been over to his house prior to that or any time subsequent to that?
MS. MCCABE: No, never.
MR. LALLY: Now you did have some conversations with Trooper Proctor following this day and around the, let me ask you this. You had testified a bit about a rolling rally, is that correct?
MS. MCCABE: Correct.
MR. LALLY: Can you describe for the jury sort of what that was or what occurred on that date?
MS. MCCABE: So that day in July a group got together under one blogger and they all met and they decided to go to different houses so Michael Proctor had been made aware of what was happening so he had reached out to tell me you know, what was going to be happening and how they had set up some cameras. It was a Saturday. I had just come home from vacation with my children and my husband. Mrs. O’Keefe picked up my two younger children and brought them out with her so they wouldn’t be home for this and my two older children and my husband were in the house while about, you know, 50 to 75 people came to my house. They screamed. They yelled. There’s a murderer. They just caused an absolute ruckus outside.
MR. LALLY: And prior to that did you have any conversations with Proctor or any other troopers from the state police about knowledge of that occurring prior to its occurrence?
MS. MCCABE: Yes.
MR. LALLY: And as far as setting up pole cameras around your house to memorialize whatever was going to happen?
MS. MCCABE: Yes.
MR. LALLY: Now you were asked some questions with regard to the Google search, again that was initiated after 6:00 a.m., why again?
MS. MCCABE: Because Ms. Read asked me to Google, how long to die from hypothermia. She said, “Google hypothermia, Google how long it takes to die in the cold. She was shaking me, screaming at me to do it.
MR. LALLY: And she’s shaking you as you’re typing, is that correct?
MS. MCCABE: Correct.
MR. LALLY: There were some misspellings in it, correct?
MS. MCCABE: Correct, I also have ( and I have issues --
MR. JACKSON: Objection.
JUDGE CANNONE: I’ll allow that. A I have ( and I have, you know, issues with my hands so I, a lot of times I Google and make errors but the cold also makes my hand go completely numb so I’m not surprised that that’s how it would come out.
MR. LALLY: When you were in your bedroom sometime after 2:00 a.m. fair to say the defendant wasn’t there shaking you when you were Google searching for Ozone Basketball or Hockomock?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: One moment, your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Nothing further, your Honor.
JUDGE CANNONE: Okay, Mr. Jackson.
MR. JACKSON: Very briefly, your Honor.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Concerning the statement I hit him, you gave a statement on January 29th to Sergeant Lank. He called you over to specifically give him a statement, correct?
MS. MCCABE: Correct.
MR. JACKSON: You gave a statement the next day, sorry, later that day to Trooper Proctor, correct?
MS. MCCABE: Correct.
MR. JACKSON: You also met that following Tuesday with a trooper named Prince, correct?
MS. MCCABE: Correct.
MR. JACKSON: And then you testified in April of 2022 no fewer than twelve times about statements that you attributed to Ms. Read, correct?
MS. MCCABE: Correct.
MR. JACKSON: And in not one of those instances, not one, is there a report that says you said she said, I hit him, correct?
MS. MCCABE: Correct, although I told Mike Lank.
MR. JACKSON: We already know that the officers all got it wrong.
MR. LALLY: Objection, your Honor.
JUDGE CANNONE: Sustained as to that. Next question, please, Mr. Jackson.
MR. JACKSON: (By Mr. Jackson) So you indicate the harassment that you just described this terrible harassment that you just described, it started in about April 2023, correct?
MS. MCCABE: Correct.
MR. JACKSON: That was around the time there were public hearings regarding this Google search, is that right?
MR. LALLY: Objection.
JUDGE CANNONE: I’ll allow that.
MR. JACKSON: (By Mr. Jackson) Is that right?
MS. MCCABE: I’m not sure exactly when the Google search came out.
MR. JACKSON: But you do know that you started suffering this harassment that you’ve claimed is awful and terrible, et cetera around April of 2023, correct?
MS. MCCABE: I didn’t claim it’s awful, it is awful.
MR. JACKSON: I’m sure it is awful, Ms. McCabe, I’m sure it’s terrible.
MS. MCCABE: It is.
MR. JACKSON: I’m sure it sucks to be harassed?
MS. MCCABE: It really does.
MR. JACKSON: Yeah, I’m sure it does.
MR. LALLY: Objection, your Honor.
JUDGE CANNONE: All right, so that’s sustained and I’ll strike it. Go ahead and ask a question, Mr. Jackson.
MR. JACKSON: (By Mr. Jackson) You were upset by April of 2023 that there was public outrage about your family being involved in the death of John O’Keefe, that’s what you were upset about, correct?
MS. MCCABE: I was upset that we as witnesses were being harassed.
MR. JACKSON: You were upset about public outrage concerning this case, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. That was answered. Next question.
MR. JACKSON: (By Mr. Jackson) And two months later, two months later in June of 2023 for the first time you testified at another proceeding and ‘lo and behold you attributed the words, “I hit him” to my client, right?
MR. LALLY: Objection.
JUDGE CANNONE: So ask that without the objectionable phrase.
MR. JACKSON: (By Mr. Jackson) Two months later at another proceeding in June of 2023, you attributed the statement, “I hit him” to my client for the first time under oath, right?
MS. MCCABE: Under oath, correct.
MR. JACKSON: You indicated when you turned your phone in the police were perfectly okay with you deleting communications with your children, correct?
MS. MCCABE: Correct.
MR. JACKSON: Including Ally, who is a material witness in this trial, correct?
MR. LALLY: Objection.
JUDGE CANNONE: So part of that is objectionable and I’ll sustain that, so.
MR. JACKSON: (By Mr. Jackson) You’re aware that your daughter, Ally, was a witness in this case?
MS. MCCABE: At the time I was not aware of that, no.
MR. JACKSON: No, but you did know that ultimately she was going to indicate that she drove Colin home, you knew that at the time?
MR. LALLY: Objection.
JUDGE CANNONE: That’s sustained.
MR. JACKSON: (By Mr. Jackson) Did you know at the time that she had driven Colin home or she said she drove him home?
MS. MCCABE: I had no idea she drove him home.
MR. JACKSON: But you deleted all those communications with Ally, didn’t you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: (By Mr. Jackson) Did you delete all the communications that you had off your phone with Ally, your daughter?
MR. LALLY: Objection.
JUDGE CANNONE: This has already been answered but go ahead. Let’s finish this loop. Did you delete them?
MS. MCCABE: I deleted the conversations with my four daughters. At that time Ally was not a witness.
MR. JACKSON: (By Mr. Jackson) All I asked you, you heard my question, did you or did you not delete communications to Ally McCabe?
MR. LALLY: Objection.
JUDGE CANNONE: It’s been answered.
MR. JACKSON: (By Mr. Jackson) You said that there was this statement that horrified you, your words, horrified you, that Kerry Roberts made during her interview when you were eavesdropping, right?
MS. MCCABE: I’m not sure if she made it during that interview. I’d have to look back to see when I said she told them everything in bold because I know she had said it to me multiple times. So I’m not sure if it’s when she, if she said it in the interview or just in general when she said, “I told them everything. I told them” et cetera.
MR. JACKSON: So when you said in that group chat, “She’s telling them everything” that might not even be what you’re talking about?
MS. MCCABE: No, it was.
MR. JACKSON: And you said that horrified you, correct?
MS. MCCABE: I didn’t know Kerry Roberts, so yes, her statement horrified me.
MR. JACKSON: It horrified you?
MS. MCCABE: Yes, that was horrifying.
MR. JACKSON: And in that group chat your response to that horrifying statement was three words: “I love it.”
MS. MCCABE: Was there a response prior to that?
MR. JACKSON: You tell me, ma’am. I’m not the one under oath, you are.
MS. MCCABE: Well, if you want to show me it again --
MR. LALLY: Objection. A -- I’ll take a look at it.
MR. JACKSON: You saw it yesterday.
JUDGE CANNONE: Do you have it handy, Mr. Jackson?
MR. JACKSON: I don’t your Honor. I’ll grab it. This one. Your Honor, it’s been marked and entered in the packet this morning that I did. May I approach?
JUDGE CANNONE: Sure.
MR. JACKSON: (By Mr. Jackson) Take a look at those two pages, if you would.
JUDGE CANNONE: Could you tell me what pages, please?
MR. JACKSON: 169, and the second pages, Ms. McCabe if you wouldn’t mind?
JUDGE CANNONE: What’s the second number, Ms. McCabe?
MR. JACKSON: The second number on the bottom right.
MS. MCCABE: 2-1-7-0.
JUDGE CANNONE: Thank you.
MR. JACKSON: (By Mr. Jackson) Do you have that in mind?
MS. MCCABE: Yes, I do.
MR. JACKSON: May I, your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: (By Mr. Jackson) In that conversation when you said, She’s telling them everything, that came right on the heels of your husband saying, this girl could write a book, this woman could write a book, correct?
MS. MCCABE: Correct, she talks non-stop.
MR. JACKSON: Right. Then you said two texts down, She’s telling them everything?
MS. MCCABE: Correct.
MR. JACKSON: The text just before that was, “I love it.”
MS. MCCABE: That was in response to my husband saying this girl could write a book.
MR. JACKSON: What’s the next thing that you wrote to that group within a second of that?
MS. MCCABE: She was telling them everything.
MR. JACKSON: Right. May I approach?
JUDGE CANNONE: Sure.
MR. JACKSON: (By Mr. Jackson) Nowhere in that text chain did you say something along the lines of, Oh, my goodness, I’m so horrified, did you?
MS. MCCABE: Those were in phone conversations.
MR. JACKSON: Nowhere in those texts that you just saw did you say the words or write the words, I’m so horrified, did she?
MS. MCCABE: No, because it was already spoken about.
MR. JACKSON: You were asked on that morning, January 29, 2022, as you drove to the location and ultimately to 34 Fairview what ultimately happened and your testimony was as you approached my client was searching frantically for John O’Keefe, correct?
MS. MCCABE: I don’t believe I said she said she was searching frantically for John O’Keefe.
MR. JACKSON: She wasn’t searching frantically?
MS. MCCABE: She was screaming frantically in the back seat.
MR. JACKSON: Screaming frantically?
MS. MCCABE: And texting in the back seat.
MR. JACKSON: Was she just sitting there curled up in the back seat sucking her thumb or was she searching out the window?
MS. MCCABE: No, she was screaming --
MR. JACKSON: Right.
MS. MCCABE: -- between Kerry and I so I’m not really sure how she saw John over here when he head is up here screaming and then looking down and texting.
MR. JACKSON: Was the whole point of that trip, Ms. McCabe, to search for John?
MS. MCCABE: It was, because she knew where he was.
MR. JACKSON: The whole point of that trip was to look for him, correct?
MS. MCCABE: She directed us to go to 34 Fairview.
MR. JACKSON: Yes or no, the whole point of the trip was to look for John, correct?
MS. MCCABE: At 34 Fairview where Karen said to go.
MR. JACKSON: And your testimony is if it hadn’t been for Karen jumping out of that truck you wouldn’t have even stopped, correct?
MS. MCCABE: Because I wouldn’t have seen him.
MR. JACKSON: Yes or no?
MS. MCCABE: I didn’t know he was there, she did.
MR. JACKSON: Yes or no, Ms. McCabe, yes or no, was that your statement, if she hadn’t gotten out of the car you wouldn’t have stopped?
MS. MCCABE: I don’t believe it was stated like that. I believe there was a question and I answered.
MR. JACKSON: And the question was, would you have stopped, and your answer was what?
MS. MCCABE: What was the direct question?
MR. JACKSON: Oh, my goodness, Ms. McCabe, it was five minutes ago.
MS. MCCABE: Did he ask, did he see something --
MR. LALLY: Objection, your Honor. A -- you like to change words, I just want to be certain.
JUDGE CANNONE: So, Mr. Jackson, just keep it to questions, not comments.
MR. JACKSON: (By Mr. Jackson) You were asked just a second ago by Mr. Lally, if Karen Read hadn’t jumped out of the car you wouldn’t have stopped, correct?
MS. MCCABE: Correct.
MR. JACKSON: Thank you. That’s all I have.
JUDGE CANNONE: Okay. All right, Ms. McCabe, we are finished. Jurors, I’m going to ask you to follow them out --
MS. MCCABE: Okay.
JUDGE CANNONE: -- like you’ve done. We’ll take a recess. This one might feel a little longer.
COURT OFFICER: Jurors, folding and leaving your notebooks on the chairs, all rise. Follow me. Jury out.
(Jury out.)
JUDGE CANNONE: In an effort to save a little time, why don't I see you at sidebar.
(Sidebar commences:
JUDGE CANNONE: It's just easier to start from here. It saves us a little bit. So what am I doing? What are you requesting?
MR. YANNETTI: So three --
JUDGE CANNONE: Who's your next witness?
MR. LALLY: Ms. Roberts.
MR. YANNETTI: Right. It doesn't apply to Kerry Roberts. Three issues. One is we want to renew our objection to providing impeachment material to the prosecution in advance of their witnesses testifying.
JUDGE CANNONE: What was that? I don't know what you're talking about.
MR. YANNETTI: So this Court entered a discovery order indicating that we had to identify the documents and other things that we would be using as exhibits to impeach witnesses. As I said, when the Court issued the order, the Court has the discretion to do that, but we're renewing our objection in light of the fact that the material that we provided to the Commonwealth regarding this unrecorded, unreported on meeting at the Lanks how Karen was communicated to Jennifer McCabe so that they could then anticipate and prepare for that cross when they shouldn't be allowed to do that. So that's number one.
JUDGE CANNONE: That was a total surprise to me yesterday. I had no idea that had taken place.
MR. YANNETTI: It was a surprise to us.
JUDGE CANNONE: I had no idea that that occurred. So your objection is noted.
MR. JACKSON: And just so the Court knows, we had done extensive work on the forensic download, and we found that GPS coordinates, and so we discovered it. She had never told it to Mr. Lally. She had never told it to the police. It was a complete surprise, and it was perfect impeachment and we lost that moment because Mr. Lally took it and presented it to the witness, and she then had an excuse. So I, you know, the testimony got out, but it was a little disconcerting that our hard work and our impeachment, which was pure impeachment, was being presented in meetings that we had no idea about, and then she gave statements that were not then discovered to us, so I was -- I wasn't flat- footed but I was close to it.
JUDGE CANNONE: Okay. That objection is noted.
MR. YANNETTI: A related objection is the fact that there was apparently a meeting that took place where she revealed new information where Lieutenant Tully was there along with the DA's office and that was not disclosed to us until she was on the stand yesterday. Our view is that any new statements are inconsistent with her previous statement --
JUDGE CANNONE: Okay. This should be Mr. Jackson's argument. It was your witness.
MR. JACKSON: I'll let go what he just said.
JUDGE CANNONE: Okay.
MR. JACKSON: Any new statements, especially as it pertains to Ms. McCabe or any witness going forward, if there are interviews, and they may call them prep sessions, if there are interviews or prep sessions that reveal new information or new dialogue between and among witnesses, we should have them. We should have that -- we should have a report of every one of them.
JUDGE CANNONE: That's concerning. What happened, Mr. Lally?
MR. LALLY: On that, so what we've been doing consistently throughout, and that's part of the reason I have Lieutenant Tully with me when I meet with any witnesses, is any change or any new information or anything like that has been reduced to writing and provided to counsel as soon as we have it. This, I wasn't aware of.
MR. JACKSON: That's what I don't understand. When I confronted the witness, she said Mr. Lally had got it to them. Well, that doesn't absolve him of the responsibility that Sergeant Tully has to reduce it to writing and present it with --
MR. LALLY: To be clear, that was a meeting that occurred while we were on trial, so that was -- and I think she was clear on that. Initially, I think she was confused, but I think she clarified as far as there was two separate. There was one meeting where, yes, I was there. This other meeting was she had asked to re-review her grand jury testimony on day that we were on trial and that was I asked Lieutenant Tully to sort of monitor that.
JUDGE CANNONE: All right. And you said that there was new information that resulted from that or that the meeting itself was new?
MR. JACKSON: Both. We didn't know about the meeting, and the new information was Lieutenant Tully was provided, and clearly provided information about impeachment, and confronted her with it. He said, "What were you doing at Mike's house on the 30th?" And she said, "I met with his wife," and Lieutenant Tully didn't ask any follow-up, if you recall that dialogue, and that's just unfathomable. I know Lieutenant Tully well enough. I've read a thousand reports. He would have followed up.
JUDGE CANNONE: So he'll be on the stand so you'll get to cross-examine him with plenty of notice.
MR. JACKSON: Right.
JUDGE CANNONE: All right. What's your other point?
MR. YANNETTI: And then the only other issue is we do expect after Ms. Roberts that the Commonwealth will be calling the Sullivan sisters about the Aruba trip, and our view on that is that that evidence is inadmissible. That is bad character evidence, and so we're requesting a voir dire prior to their testimony to parse out what they can testify to and what they can't.
JUDGE CANNONE: All right. Who's doing that cross?
MR. YANNETTI: I am.
JUDGE CANNONE: All right. So you objected to it before. I said that it's coming in. You got the grand jury minutes from them. You can object on a question by question basis, but it comes in as a -- and I will certainly give a prior bad acts instruction, and it goes to the nature of the relationship, potential motive. I made all those findings.
COURT REPORTER: We're on the record, by the way.
JUDGE CANNONE: All right. So based on my reading of the grand jury minutes, and of course, I will do this. It's awkward to have to make these findings under the footnote eight of Commonwealth vs. Semia that I have to make, so it's better to do them now. Unless something comes in differently, I find, at least by reading the grand jury minutes, that these acts or conversations occurred. I find that it goes to the defendant's state of mind and the nature of the relationship, and therefore, and does go to motive. Pursuant to the footnote in Samia, I find that the jury will follow any instruction that I give them, that they won't use it for bad character and propensity. I've noted every time I've given them a limiting instruction, they've nodded. I've given several on the digital evidence and others on what is evidence. I find that the probative value is not outweighed by the risk of prejudicial effect on the defendant because of the limiting instructions. And as you know, Ms. Yannetti, Massachusetts case law case is clear on domestic violence. It can go to absence of mistake and not propensity, but the case law is pretty clear that it does go to the nature of the relationship. So those are my findings, so the record is clear for you there for appellate purposes.
MR. YANNETTI: Understood. The only thing that was left out of there is the -- I expect that the Commonwealth will intend to introduce statements of John O'Keefe as well during that trip. The Court did not mention that.
JUDGE CANNONE: So I mentioned that before. So the statements of O'Keefe as to -- I know Bins is one of the case, but I will give the jurors that they're about to hear evidence of statements made by John O'Keefe. These statements are being admitted only for a limited purpose of establishing John O'Keefe's state of mind. You're not to consider this testimony of proof that the defendant has bad character or propensity to commit crimes. The testimony of the witnesses recounting conversations with Mr. O'Keefe can only be used as they go to the defendant's motive or intent on January 28 and 9, and only if you find the defendant was aware of John O'Keefe's state of mind at the time of the crime and would be likely to respond to it. There need not be direct evidence that the defendant learned of Mr. O'Keefe's state of mind so long as you reasonably can infer from the evidence that she did learn of it. So it's Bins. Ms. McLaughlin, what are those other lines of cases?
MS. MCLAUGHLIN: I have to grab my --
JUDGE CANNONE: Yeah, Qualls. There are a bunch of cases on it.
MR. YANNETTI: Right. Just maintaining our objection to it. There should be a foundation laid in terms of how my client would've known about those statements if she wasn't present for them, and didn't see them in a text message or the exception.
JUDGE CANNONE: Okay. I'm not sure that lines up directly with the case law, but we'll take it on a question --
MR. YANNETTI: Thank you.
JUDGE CANNONE: Who is doing the cross of Ms. Roberts?
MR. JACKSON: I am.
JUDGE CANNONE: Okay. So we expect that that will be a lengthy direct and cross today?
MS. LITTLE: Not as long as --
MR. YANNETTI: Sorry.
MS. LITTLE: Probably 30, 45 minutes.
JUDGE CANNONE: All right. So we may not even get to -- hopefully we will, but we might not even get to these witnesses. MR. YANNETTI: Understood.
JUDGE CANNONE: All right. Are any other questions? I've given you enough of a response to make a record to save it for appellate purposes.
MR. YANNETTI: Appreciate that. Thank you.
JUDGE CANNONE: All right. So we'll take for us 15 or 20 minutes.
(Court in recess.)