Commonwealth v. Read — Trial ArchiveKevin O'Hara — Cross/Redirect
496 linesCROSS-EXAMINATION BY MR. YANNETTI:
MR. YANNETTI: Good morning, Lieutenant.
MR. O'HARA: Good morning, sir.
MR. YANNETTI: Sir, so you will agree with me that it was Lieutenant Brian Tully who first called you at 2:32 p-m. to ask that your team come out for an evidence search?
MR. O'HARA: That's correct, sir.
MR. YANNETTI: And you knew at that time that Lieutenant Tully was the -- well, he was in charge of the Norfolk County State Police Detectives Unit, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: Attached to the Norfolk County D.A.'s Office, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And you also knew Trooper Michael Proctor at that time?
MR. O'HARA: I knew who he is. Yes, sir.
MR. YANNETTI: And you knew that Trooper Michael Proctor was in the same unit as Lieutenant Tully, correct?
MR. O'HARA: I don't know if I knew he was assigned to that office. I'm not sure where he was assigned, sir.
MR. YANNETTI: You've since found out that he is?
MR. O'HARA: Correct, sir.
MR. YANNETTI: Now, you told Lieutenant Tully during that phone call at 2:32 p.m. that you would make your team available that day, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: But, at that point in time, Lieutenant Tully specifically held you up, right, because he didn't have authorization yet?
MR. LALLY: Objection.
JUDGE CANNONE: Is that true?
MR. O'HARA: It's not.
BY MR. YANNETTI:
MR. YANNETTI: Okay. He told you that he did not have the green light, correct?
MR. O'HARA: He had not requested official response from SERT at that time.
MR. YANNETTI: So you were not authorized to respond at that time, correct?
MR. O'HARA: No. Neither one of us were allowed to dispatch my team. We have to send up formal requests to get authorization to respond.
MR. YANNETTI: All right. Now, by 2:32 p.m. on January 29th when you first spoke to Lieutenant Tully, snow had been falling consistently in Canton since the early hours, correct, the early morning hours?
MR. O'HARA: I would assume so, yes, sir. If --
MR. YANNETTI: I'm sorry?
MR. O'HARA: If it wasn't my house, I would assume so, yes.
MR. YANNETTI: But you lived in Massachusetts at that time, right?
MR. O'HARA: Yes, I did, sir.
MR. YANNETTI: And you weren't hours away when you were contacted by Lieutenant Tully, correct?
MR. O'HARA: I was not, no.
MR. YANNETTI: Now, you were aware that John O'Keefe's body was found on Brian Albert's lawn at 6:03 that morning?
MR. O'HARA: I believe when I spoke to Lieutenant Tully, he told me around 6:30.
MR. YANNETTI: Okay. Well, let's go with 6:30 then. So when you received the call from Lieutenant Tully, snow would have been accumulated from 6:00 a.m., I'm sorry, 6:30 a.m. approximately to approximately 2:30 p.m., correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And so snow had been accumulating at that point when you first got the call for about eight hours after the body was found, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: Now, before you conduct a search, is it important for you to know in general terms the working theory of the police and the investigators in terms of what had happened at the scene?
MR. O'HARA: It's not. I want as detailed information on what we are looking for. As far as the investigation is concerned, that's not interesting to -- I'm not interested in those exact specifics. I just want to know where you would like us to search and what you need us to find.
MR. YANNETTI: Right. But, in order to know what you were seeking to find, you'd need to learn from the investigators what they believed happened that would leave that evidence, correct?
MR. O'HARA: Correct, sir. He told us we were looking for pieces of taillight from a vehicle.
MR. YANNETTI: All right. You'd also want to know prior to getting to the scene who had access to the scene before you got there, would you not?
MR. O'HARA: I did not even know that information, no, sir. And I did not ask that.
MR. YANNETTI: All right. Is it important to maintain the integrity of a crime scene before it is searched or processed?
MR. O'HARA: Sometimes. But a lot of times when we're involved in searches, we might not be out for days later. If search efforts have been exhausted and they don't think any evidence can be recovered, we will go out to scenes that have been left unsecured for days on end.
MR. YANNETTI: Sure. IT understand that, but that wasn't my question. My question was is it important to maintain the integrity of a crime scene before it's searched or processed?
MR. O'HARA: No. You can leave it unattended if you don't believe it will be disturbed or anything will be taken, sir.
MR. YANNETTI: Is it preferable to leave a crime scene unattended prior to searching it?
MR. O'HARA: I think they would have searched it before we arrived, sir.
MR. YANNETTI: Again, I'm going to ask, if you would, please just respond to my question.
MR. O'HARA: What my preference would be, sir, yes. I would prefer that it's secured.
MR. YANNETTI: Okay. That wasn't very difficult, was it?
MR. O'HARA: I apologize.
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: No comments.
MR. YANNETTI: Yes, Your Honor.
BY MR. YANNETTI:
MR. YANNETTI: At the time that Lieutenant Tully first called you, were you aware that no one from law enforcement was controlling that crime scene?
MR. LALLY: Objection.
JUDGE CANNONE: T'll allow it.
MR. O'HARA: I was not aware of that. No, sir.
BY MR. YANNETTI:
MR. YANNETTI: Were you aware at that time that no one had been controlling it for about six or seven hours before you were called?
MR. O'HARA: I was not aware of that, sir.
MR. YANNETTI: Were you aware that the scene had been abandoned by the police and investigators at about 7:50 in the morning?
MR. LALLY: Objection.
JUDGE CANNONE: T'll allow it.
MR. O'HARA: I was not aware of that, sir.
BY MR. YANNETTI:
MR. YANNETTI: Were you aware that the scene was left open to the public for hours before you were asked to search?
MR. O'HARA: I was not aware of that.
MR. YANNETTI: In any case, when you got there, there was only one trooper on scene, and that was a trooper from your unit?
MR. O'HARA: Correct.
MR. YANNETTI: Beausoleil?
MR. O'HARA: Correct.
MR. YANNETTI: Nobody else was guarding the crime scene at that point, correct?
MR. O'HARA: There was not.
MR. YANNETTI: In fact, at that point, did you know where specifically on the property you were going to be searching?
MR. O'HARA: I did not.
MR. YANNETTI: And, in your experience, is it proper procedure in an investigation that requires a search for law enforcement to give up control of the area that will be searched?
MR. O'HARA: It's not unusual for us to respond to scenes like that, sir.
MR. YANNETTI: It happens, but is it proper procedure, sir, to give up control of an area to be searched prior to the search?
MR. O'HARA: If they don't think anything will be recovered in the meantime, sir, it's something we encounter all the time on our searches.
MR. YANNETTI: So in this case, is it your testimony then that the investigators didn't think that anything would be recovered?
MR. LALLY: Objection.
JUDGE CANNONE: I'll sustain the objection.
BY MR. YANNETTI:
MR. YANNETTI: Well, you recorded that there was a second alert regarding this case at 2:53 p.m., correct?
MR. O'HARA: That was the initial alert, sir.
MR. YANNETTI: Well, the initial -- well, maybe we are getting into semantics here. But you were first notified at 2:32 p.m. by Lieutenant Tully, correct?
MR. O'HARA: That's him calling me. The 2:53 alert is sent out to my full team.
MR. YANNETTI: Okay. That 2:53 alert is the second time that you are receiving information about this case, right, the first being 2:32 from Lieutenant Tully?
MR. O'HARA: No. That's not new information. That's me taking the information received from Lieutenant Tully and sending it out to the rest of my team. Like I say, we're not aware of the circumstances yet.
MR. YANNETTI: So you were the one to end out that second alert or that alert --
MR. O'HARA: A west team supervisor, because I was going to start clearing my driveway. So I reached out to a west team supervisor, and he sent out that alert.
MR. YANNETTI: And who was that?
MR. O'HARA: That was then Sergeant, now Lieutenant Simpson.
MR. YANNETTI: And the alert that Sergeant Simpson sent out was an instruction for members of your team to begin clearing off their cruisers and their driveways to get ready to go, correct?
MR. O'HARA: That was an availability alert, to see who would be available to respond.
MR. YANNETTI: And that they should begin clearing off their cruisers and driveways, correct?
MR. O'HARA: Yes, so they would be able to respond.
MR. YANNETTI: All right. But your team was still not activated at that point, correct?
MR. O'HARA: Correct.
MR. YANNETTI: In fact, Sergeant Simpson explicitly wrote in that alert, quote, "We do not have the green light yet," end quote, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: Sergeant Simpson at 2:53 p.m. in that alert actually typed it in twice that your team did not have the green light, correct?
MR. O'HARA: Correct. It's a voice-generated response. It will normally duplicate the instructions so as they listen to it if they miss it the first time through, they can hopefully hear it clearly the second time through.
MR. YANNETTI: Okay. And it was very clear that you didn't have the green light from that alert, correct?
MR. O'HARA: Correct. So we weren't authorized to respond yet.
MR. YANNETTI: Okay. Now, you stated that you were in Massachusetts at the time you were first contacted, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And how far were you from Canton?
MR. O'HARA: Normally it would be about a 20-minute ride.
MR. YANNETTI: All right. With the blizzard conditions, however, it took you longer than that?
MR. O'HARA: Forty-three minutes, sir.
MR. YANNETTI: Now, you're familiar with the SERT administrative journal extract?
MR. O'HARA: The daily journal, sir?
MR. YANNETTI: Yes.
MR. O'HARA: Yes, sir.
MR. YANNETTI: All right. That recorded -- and, when I say "that," I mean -- you called it the daily journal?
MR. O'HARA: Yes, sir.
MR. YANNETTI: All right. I'll call it the daily journal. That daily journal recorded the initial contact that you had with Lieutenant Tully at 2:32 p.m., correct?
MR. O'HARA: Yes. That was entered into the daily journal.
MR. YANNETTI: And then the second entry was the 2:53 p.m. alert that was sent out by Sergeant Simpson, correct?
MR. O'HARA: I'm not sure if that's in the daily journal or not, but that would be the alert, sir.
MR. YANNETTI: May I approach the witness, please?
JUDGE CANNONE: Yes.
MR. YANNETTI: Your Honor, I'd like to hand the witness this document and leave it there. I have an extra copy. I have no problem with him referring to it.
BY MR. YANNETTI:
MR. YANNETTI: Once you've had a chance to review that, Lieutenant, if you would look up at me when you're done.
MR. O'HARA: All set, sir.
MR. YANNETTI: So you'd agree with me that the 2:32 p.m. phone call with Lieutenant Tully is in the daily journal, correct?
MR. O'HARA: Yes, it is.
MR. YANNETTI: And the 2:53 p.m. alert by Sergeant Simpson is also in the journal, correct?
MR. O'HARA: Yes, it is.
MR. YANNETTI: Both of those have a timestamp, do they not?
MR. O'HARA: They do, sir.
MR. YANNETTI: What is the next entry on that journal?
MR. O'HARA: It says (as read), "SERT activated. En route to Canton."
MR. YANNETTI: Now, there is no time entry next to that -- I'm sorry. No time is entered next to that entry, correct?
MR. O'HARA: There is not, no.
MR. YANNETTI: The previous alert said only to clear the vehicles and driveways, essentially, right, to check on availability?
MR. O'HARA: Correct, sir.
MR. YANNETTI: So the time that your team is alerted was entered in the journal, but there is no time entered in this journal as to when you were dispatched, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: But you have a memory of after that 2:53 p.m. alert sent out by Sergeant Simpson that Lieutenant Tully called you back about an hour later?
MR. O'HARA: It's not a memory, sir. Our alert for the team to respond is timestamped at 3:48 p.m.
MR. YANNETTI: Okay. And that was Sergeant Simpson that recorded that, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: But that's not in the daily journal, correct?
MR. O'HARA: No. That's in the health and homeland alert network which records all our alerts that get sent out. And that was timestamped at 3:48.
MR. YANNETTI: 3:48. Okay. Now, other than authorization that would have been obtained after the 2:53 alert, did you ever ascertain what else changed on the part of the Norfolk State Police Detective Unit that allowed you now to have the green light?
MR. O'HARA: Once I reached out -- once I was done cleaning my driveway off, which took a significant amount of time, I spoke to my captain. He said we were approved through our chain of command. And that's when either I contacted Lieutenant Tully or he called me. He said he was approved through his chain of command to include the deputy superintendent, who was authorizing a response. There's several layers of the chain of command that have to approve a response for numerous reasons, staffing reasons. Again, I said some of my team members aren't full-time members. Some of them I have to pull off their assignments. So if they're on patrol, I'll be -- so they take that into consideration, overtime consideration, safety consideration and now additional members driving through the weather to respond. So that all gets discussed at levels above us.
MR. YANNETTI: All right. That answer applied to strictly issues regarding authorization on both ends, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: All right. You recall my question, which was other than authorization, did you learn what, if anything had changed in that time period from 2:53 p.m. to 3:48 p.m. on the part of the Norfolk State Police Detectives Unit?
MR. O'HARA: No, Sir. We just talked about the authorization process.
MR. YANNETTI: So sometime shortly before 4:00 o'clock -- you're talking about 3:48 being the alert authorizing you to depart. Sometime before 4:00, Sergeant Simpson informed your team to start heading to Canton and to report to you, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: That meant that team members should basically stop what they are doing, the ones who are going to be going, get their gear ready, suit up, get in a car and start driving to Canton to meet up with you, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And we've already discussed that on this particular day with blizzard conditions and the roads as they existed, that would obviously take more time than it would on a clear, sunny day, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And I believe your estimation is maybe about a 20-minute drive in good weather, with good roads versus the 43 minutes it actually took you to get there, correct?
MR. O'HARA: Correct.
MR. YANNETTI: Now, the seven members of your team who did show up were Bearden, Beausoleil, Carriere, Luise, O'Brien, you and Viscardi, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: You all arrived at about the same time, sir?
MR. O'HARA: No. We had a pretty significant difference between arrival times.
MR. YANNETTI: Okay. Is there something called a personnel status report that records arrival times, sir?
MR. O'HARA: No. It doesn't record arrival times. We just enter who is responding. We use our Geotab, which is our vehicle locator, to determine arrival times.
MR. YANNETTI: So is it your testimony that the personnel status report does not record the date and time that somebody arrived on scene?
MR. O'HARA: No. That's all manually entered, sir.
MR. YANNETTI: Do you deny that the personnel status report in this case recorded the date and time of each of those officers that I just mentioned who came on scene?
MR. O'HARA: It has who arrived on scene. Yes, sir.
MR. YANNETTI: But it doesn't just say who arrived on scene. The personnel status report says when they arrived on scene, correct?
MR. O'HARA: Yeah. It's whenever they would have been entered into the system, but that doesn't mean they were officially on scene yet.
MR. YANNETTI: But, again, that's not what the document says, right? It doesn't say we're entering this into the system because they are arriving. The document says, on scene. And it gives a date and time; does it not?
MR. O'HARA: Yes, it does, sir.
MR. YANNETTI: All right. Now, your testimony is -- oh, and by the way, the personnel status report, you'd agree with me, has everybody except for you and Beausoleil showing up at 5:00 p.m. on January 29th of 2022; does it not?
MR. O'HARA: Yes, it does, sir.
MR. YANNETTI: And it has you and Beausoleil showing up five minutes before that at 4:55 p.m. on January 29th, correct?
MR. O'HARA: Correct.
MR. YANNETTI: But it's your testimony that when you got there, it was just you and Beausoleil, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: Which actually would be consistent with the personnel status report, right?
MR. O'HARA: Yes, sir.
MR. YANNETTI: Because that has you two showing in first, as well, right?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And then your testimony is that other members didn't show up until between 5:20 and 5:24 p.m.?
MR. O'HARA: Trooper Bearden arrived at 5:21. Sergeant Luise and Sergeant O'Brien arrived at 5:24. Trooper Viscardi showed up 5:34. Sergeant Carriere showed up at 5:41.
MR. YANNETTI: Okay. And so the last member of your team, which is -- Carriere?
MR. O'HARA: Carriere. Correct, sir. 5:41.
MR. YANNETTI: He showed up at 5:41 and now your team was all there, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: So is it your testimony that you did not meet up as a team somewhere and head to 34 Fairview? You all arrived individually?
MR. O'HARA: That's correct, sir.
MR. YANNETTI: Did every single trooper who arrived have their own cruiser?
MR. O'HARA: Yes, they did, sir.
MR. YANNETTI: All right. Now, you would agree with me that when Lieutenant Tully first contacted you at 2:32 p.m., it was still daytime, correct?
MR. O'HARA: Yes, it was.
MR. YANNETTI: So it was light out, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: You'd agree with me that at around 5:00 o'clock on this late January day in Massachusetts, it was dark out by the time you got there, correct?
MR. O'HARA: Yes, it was.
MR. YANNETTI: So when you finally arrived on scene after your team getting the green light, it was dark for the start of your search, correct?
MR. O'HARA: Yes, it was.
MR. YANNETTI: When you got there, you set up a command post?
MR. O'HARA: Well, if you could call my cruiser a command post, sure, sir.
MR. YANNETTI: Well, I didn't use the term "command post," sir, did I?
MR. O'HARA: You did not.
MR. YANNETTI: Who used it first?
MR. O'HARA: We marked my cruiser as a command post on the map, sir.
MR. YANNETTI: Okay. All right. And a command post is a base of operations at the scene, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And you parked your cruiser basically in front of the driveway at 34 Fairview to serve as the command post?
MR. O'HARA: Yes. The right side of the driveway, yes, sir.
MR. YANNETTI: And you were initially facing away from the flagpole when you did that?
MR. O'HARA: Yes, sir.
MR. YANNETTI: Which would mean that your cruiser was parked technically on the wrong side of the street, facing Cedarcrest, because you were against 34 Fairview?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And then ultimately turned it around?
MR. O'HARA: Yes. Myself and Trooper Beausoleil moved our vehicles.
MR. YANNETTI: All right. And you initially parked there in part because you wanted to keep the area where you were searching clear of vehicles, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And that was where you met, at the -- we'll call it a command post because you did, your cruiser. That was where you met to discuss the parameters of the search?
MR. O'HARA: Until Detective Lieutenant Tully arrived on scene, that's where we spoke.
MR. YANNETTI: Okay. And you would agree with me that it was Lieutenant Tully from the Norfolk State Police Detectives Unit who told you where to look and what to look for, correct?
MR. O'HARA: Correct. He told us the area he thought would be the best probability to find what we were looking for.
MR. YANNETTI: In addition to your team, the seven of you, you noted that there were five other officers on scene at various points, correct?
MR. O'HARA: I believe it was about five, sir.
MR. YANNETTI: They were all in uniform?
MR. O'HARA: They were not.
MR. YANNETTI: Some were in plainclothes?
MR. O'HARA: They were.
MR. YANNETTI: And you didn't know who those five other officers were, correct?
MR. O'HARA: I only recognized two of them, sir.
MR. YANNETTI: So the other three, you didn't know if they were state police or Canton Police?
MR. O'HARA: Correct, sir.
MR. YANNETTI: At that point, were you made aware that the Canton Police had been conflicted out of this investigation?
MR. O'HARA: I had not, no, sir.
MR. YANNETTI: All right. Now, Lieutenant Tully directed you to an area where he said that John O'Keefe's body was found, correct?
MR. O'HARA: He directed us to where he believed the vehicle involved had been parked and to where the victim's body was recovered.
MR. YANNETTI: All right. So again, in answer to my question, he did direct you to an area where he believed the victim's body was found, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And he told you that he believed that the victim officer was hit and dragged by a motor vehicle, correct?
MR. O'HARA: Yeah. I believe he might have said possibly dragged.
MR. YANNETTI: All right. But, in terms of your paperwork on the case, there is something called a final mission report, correct?
MR. O'HARA: Yes, there is, sir.
MR. YANNETTI: And what is the final mission report?
MR. O'HARA: That's just a brief summary of the actions conducted by SERT during our assignment.
MR. YANNETTI: And, with regard to -- just going back for a second with regard to those five officers, you mentioned that you recognized two of the five officers that were in plainclothes at the scene?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And what departments were they from?
MR. O'HARA: The only two I recognized were from the state police.
MR. YANNETTI: Okay. Now, getting back to the final mission report, you called it a brief summary of what you had done with regard to the search, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: Just because it's brief doesn't mean that it should be inaccurate, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: It's important with regard to anything that you submit on this case that you be as accurate as possible, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And you try to be, correct?
MR. O'HARA: We do our best, sir.
MR. YANNETTI: Right. And there is an entry -- well, there are six different categories or, I should say, seven different categories on the final missing report, the first being the mission name which you entered as the Canton evidence search, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And that was accurate? An evidence search occurred and it occurred in Canton, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And you also put the date and time of the first call, and you entered that as January 29th of 2022 at 2:32 p.m., correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And that was accurate because you've testified that's when Lieutenant Tully contacted you, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And there is an entry or a question or a box that says "General Terrain." And you entered that as neighborhood snow-covered street and front law, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And that was accurate, right?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And, in terms of incident type, you entered evidence search, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And that was accurate, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And then there is a final mission report that talks about your mission and starts with, you know, seven SERT members. And that's the SERT team, right?
MR. O'HARA: Yes, sir.
MR. YANNETTI: Seven SERT members responded to the scene. And it talks about, you know, the snow in the area, where the victim's body was found. The plows hadn't cleared the street, et cetera, et cetera. That paragraph is accurate, as well, correct?
MR. O'HARA: Yes, it is, sir.
MR. YANNETTI: And then there is a final mission report by, and it gives your name, Lieutenant Kevin O'Hara. And it has your accurate badge number, which is 3042, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: All right. Everything that we've just discussed in terms of what you put in your final mission report was entered accurately, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And the final category is general description of mission. And would you agree with me that you entered (as read), "The off-duty officer was hit and dragged by a vehicle at approximately 12:30 a.m."
MR. O'HARA: I don't remember exactly how it's worded, sir. If I could look at it?
MR. YANNETTI: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. O'HARA: All set, sir.
MR. YANNETTI: If I may approach?
JUDGE CANNONE: Yes.
BY MR. YANNETTI:
MR. YANNETTI: Lieutenant, having read that portion of the final mission report, is your memory refreshed?
MR. O'HARA: Yes, it is, sir.
MR. YANNETTI: And did you enter in there (as read), "The off-duty officer was hit and dragged by a vehicle at approximately 12:38 a.m."?
MR. O'HARA: Yes, I did, sir.
MR. YANNETTI: All right. Now, with regard to the area that -- or I should say Lieutenant Tully's direction to you to search the area where the victim's body was found, Lieutenant Tully never informed you that he was actually present and saw the victim's body in that spot, did he?
MR. O'HARA: He did not. No, sir.
MR. YANNETTI: Did you mark the place where John O'Keefe's body was found with GPS coordinates?
MR. O'HARA: We did not. He was no longer on the scene, sir. So I think it would have been not 100 percent accurate.
MR. YANNETTI: You also mentioned that Lieutenant Tully directed you to the area where the SUV had been parked, correct?
MR. O'HARA: To where the vehicle was believed to have been parked. Yes, sir.
MR. YANNETTI: At that time, did you know it was an SUV or not?
MR. O'HARA: I did not, sir.
MR. YANNETTI: All right. But, in any case, Lieutenant Tully didn't tell you that he ever saw the vehicle parked in the area to which he directed you, correct?
MR. O'HARA: He did not say that he saw it there. No, sir.
MR. YANNETTI: So Lieutenant Tully told you to look fora man's sneaker, correct?
MR. O'HARA: That was one of the items missing. Yes, sir.
MR. YANNETTI: And he told you to look for red and clear plastic pieces of taillight, correct?
MR. O'HARA: He just said taillight. He didn't say red, clear taillight pieces.
MR. YANNETTI: Did Lieutenant Tully give you approval not just to search outside the house but also inside the house?
MR. O'HARA: No. We never discussed searching inside the house, sir.
MR. YANNETTI: And you had mentioned during your testimony that you confirmed that the homeowner was there, right, because he came out of the house at one point?
MR. O'HARA: I don't know if it was the homeowner, but an adult male exited the house while we were there, sir.
MR. YANNETTI: Sure. And he appeared to live at that home, correct?
MR. O'HARA: Yes.
MR. YANNETTI: If I may just have a moment.
(Whereupon, there was a brief pause.)
BY MR. YANNETTI:
MR. YANNETTI: All right. Now, with regard to the area that you were searching, you would agree with me that Lieutenant Tully was the one who directed you where to search and what to search for, correct?
MR. O'HARA: He gave us the best idea for the search area. Yes, sir.
MR. YANNETTI: All right. And it was based on his direction that you created a grid and began your search?
MR. O'HARA: He told us where he believed the vehicle was parked and where the victim's body was found. And I decided how far of a distance we would search.
MR. YANNETTI: Okay. So that's another way of saying it was based on his direction that you created a grid and began your search, correct?
MR. O'HARA: I based it off of the information he provided. Yes, sir.
MR. YANNETTI: So the answer is "yes"?
MR. O'HARA: I guess so, sir.
MR. YANNETTI: This was the first time that you and your team have done a search in the snow, correct?
MR. O'HARA: Not for evidence. We had never done a search like this before. Just for missing person searches.
MR. YANNETTI: I see. But, in any case, you've been trained to search winter crime scenes that have snow, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: There are proper techniques for conducting such searches during or after a snowfall, correct?
MR. O'HARA: Yes. We have best practices we use.
MR. YANNETTI: I'm sorry. I didn't hear.
MR. O'HARA: Yes. We have best practices we use, sir.
MR. YANNETTI: Of course. Best practices would include documenting the scene and the area to be searched with photographs and diagrams, correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: It would also include using, you know, gentle methods to remove snow, correct?
MR. O'HARA: Yes. The best way you can, yes, sir.
MR. YANNETTI: That might include, you know, smaller hand tools, brushes, gloved hands?
MR. O'HARA: Only if you would have a real small area.
MR. YANNETTI: It would include removing snow layer by layer and then sifting it and documenting evidence again for each layer that's removed?
MR. O'HARA: Yeah. I believe that's how we went through it, sir. We went slowly, methodically in sifting through the snow as we progressed down the area. Correct.
MR. YANNETTI: Sure. And best practices would mean documenting by photographs along the way the progress of your search, would it not?
MR. O'HARA: That would be up to the detectives or the crime scene unit, sir.
MR. YANNETTI: Well, but you were the one who was making those decisions, correct?
MR. O'HARA: Not for documentation purposes, no. That's not our responsibility, sir.
MR. YANNETTI: But you would agree with me that it would be advisable to document your search in that way, would it not?
MR. O'HARA: That would be at the discretion of the detectives, sir.
MR. YANNETTI: Okay. Well, would it harm your search in any way to fully document it along the way?
MR. O'HARA: It would not harm it. No, sir.
MR. YANNETTI: You want to take your time and work methodically and thoroughly in the search, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: And you want to collect evidence as it's located and immediately photograph it in place before it's disturbed, correct?
MR. O'HARA: As evidence is discovered, it will get photographed in place. Yes, sir.
MR. YANNETTI: During your search in this case, your team found a sneaker and pieces of red and clear plastic, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: The evidence that you found was basically on top of each other, within a few inches of each other, correct?
MR. O'HARA: Within a foot or two, a couple feet. Yes, sir.
MR. YANNETTI: Well, you testified at a prior proceeding in this matter; did you not?
MR. O'HARA: I did, sir.
MR. YANNETTI: And you were sworn to tell the truth during that prior proceeding, as well; correct?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And that testimony was closer in time to the search that you conducted on January 29th than today is, correct?
MR. O'HARA: Yes, it was, sir.
MR. YANNETTI: And your memory would have been better then than it is today, correct?
MR. O'HARA: Probably, sir.
MR. YANNETTI: You were asked the question, quote (as read), "And, as far as the red and clear glass you believed consistent with the taillight, was that found in the same area as the sneaker or somewhere else?" Do you recall that question?
MR. O'HARA: I believe being asked that question. Yes, sir.
MR. YANNETTI: And your answer was (as read), "Same area. Within a few inches, less than a foot," correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: Now, you mapped out GPS coordinates for what you found?
MR. O'HARA: One of the team members did. Yes, sir.
MR. YANNETTI: Your team did?
MR. O'HARA: Yes, sir.
MR. YANNETTI: And Lieutenant Tully from the Norfolk State Police Detectives Unit was present during the search, correct?
MR. O'HARA: Yes, he was.
MR. YANNETTI: And he was the one that was photographing the items that were found?
MR. O'HARA: Yes, he did.
MR. YANNETTI: So I'd like to ask you a few questions about your observations about where these items were found in relation to each other. Was there a piece of red plastic located on the roadway left of the flagpole when you look at the house from the street?
MR. O'HARA: Left of the flagpole. Yes, sir.
MR. YANNETTI: All right. Now, given your testimony about these items essentially being in the same area less than a foot away from each other, it could not be true, then, that from that red piece of plastic that was found in the street that three feet south of that was a black Nike sneaker found under the snow? That couldn't have happened, correct?
MR. O'HARA: Well, I don't know the distance between the objects as far as the mapping purposes, sir. But, as far as how far apart, the first thing we discovered was one red piece of plastic. And then further south, that's when we found the sneaker and additional pieces.
MR. YANNETTI: Right. But, again, they were all in the same area, less than a foot apart, correct?
MR. O'HARA: The same general area, sir. But it could have been over a foot, sir. I'd have to measure between the GPS markings.
MR. YANNETTI: Okay. Well, so is your testimony today that what you testified to in that prior proceeding where everything was less than a foot apart, that wasn't accurate?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it. Is that your testimony, sir?
MR. O'HARA: Best recollection, that they were close, within a foot. But, to be 100 percent accurate, you would have to measure between the two GPS points, which I have not done.
BY MR. YANNETTI:
MR. YANNETTI: Sure. But, if your estimate is they were -- you didn't even say a foot. You said less than a foot, correct?
MR. O'HARA: I believe that's what you read, around a foot. Yes, sir.
MR. YANNETTI: Which is what you testified to, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: So if it's less than a foot, by definition, the sneaker couldn't have been found three feet south of where that red piece of plastic was, correct?
MR. O'HARA: Again, I don't know if that's accurate, sir.
MR. YANNETTI: You don't know if what's accurate?
MR. O'HARA: Where you're saying three feet. I don't know if that's accurate, sir.
MR. YANNETTI: No. That's what I'm asking you. Is it accurate?
MR. O'HARA: Oh, I don't know, sir. I'm not sure of the exact distance. I didn't measure the GPS markings, sir. And I didn't know where you came up with that number three feet, sir.
MR. YANNETTI: I'm just asking questions.
MR. O'HARA: Okay.
MR. YANNETTI: I'm just asking questions. All right. So with regard to -- let's assume for a moment that the sneaker was found three feet south of that first red piece of plastic. From your observations, was there a clear piece of plastic that was found a few feet south of that black sneaker?
MR. O'HARA: There was a piece of clear plastic found just past the sneaker.
MR. YANNETTI: A few feet south of the sneaker?
MR. O'HARA: I don't know where you're getting that from, sir.
MR. YANNETTI: Again, you don't have to like worry where my questions are coming from --
JUDGE CANNONE: Mr. Yannetti, no comments.
MR. YANNETTI: Sure.
JUDGE CANNONE: Next question.
BY MR. YANNETTI:
MR. YANNETTI: I'm just asking a factual question. You were there. I was not.
JUDGE CANNONE: Mr. Yannetti, just questions.
MR. YANNETTI: Yes.
BY MR. YANNETTI:
MR. YANNETTI: Was a clear piece of plastic found a few feet south of the black sneaker which was found three feet south of the red piece of plastic? Did that happen?
MR. O'HARA: I don't know the distance, sir, no, not without measuring it. But I wouldn't think it was that far of a distance. They were much closer than that.
MR. YANNETTI: Right. I mean, you say you don't know the distance but you testified to what the distance was in that prior proceeding; did you not?
MR. LALLY: Objection.
JUDGE CANNONE: Next question.
MR. YANNETTI: All right.
BY MR. YANNETTI:
MR. YANNETTI: And then, moving along, we have the red piece of plastic; three feet south, black sneaker; a few feet south, clear plastic. And, finally, several feet south of that clear piece of plastic, was there a second piece of red plastic found, several feet south?
MR. O'HARA: No. Again, I don't agree with your description of it.
MR. YANNETTI: All right. So we will agree that, you know, one piece of red plastic; three feet south, sneaker; a few feet south, clear piece of plastic; and then several feet south, more red plastic. That didn't happen, correct?
MR. O'HARA: I don't agree on those distances. No, sir.
MR. YANNETTI: No. Okay. Now, you testified that these items were buried under some snow, correct?
MR. O'HARA: Correct, sir. They were under snow.
MR. YANNETTI: May I have those exhibits, please? Could I display Exhibit 113, please, Your Honor?
JUDGE CANNONE: All right. A juror needs to take a break.
MR. YANNETTI: Oh, sure.
JUDGE CANNONE: Why don't we have this be our morning recess, folks. We'll take about a 15-, 20- minute break.
(Whereupon, the jury is escorted from the courtroom and a brief recess is taken.)
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: Mr. Yannetti, you can continue.
MR. YANNETTI: Thank you, Your Honor.
BY MR. YANNETTI:
MR. YANNETTI: Lieutenant O'Hara, you testified on direct examination that you collected six or seven pieces of plastic, correct?
MR. O'HARA: I believe that's what we found. Yes, sir.
MR. YANNETTI: Would you agree with me that it's important to be precise in your investigation and your search?
MR. O'HARA: Yes. That's why Lieutenant Tully took an evidence log, sir.
MR. YANNETTI: All right. So as you testified here today, two and a half years later, can you tell the jury whether it was six or seven of the pieces of plastic that you actually found?
MR. O'HARA: I've never seen the evidence log from that night, sir. So I'm not sure exactly how many he recovered. Again, I was partaking in the search. So I'm not sure what the exact number is, sir.
MR. YANNETTI: And you would agree with me that you only mapped three of them on the map that was introduced here at trial, correct?
MR. O'HARA: Correct.
MR. YANNETTI: And, again, that was because the pieces were essentially on top of each other, correct?
MR. O'HARA: Correct. As you would mark them on the GPS, they were marking almost directly on top of each other, and I knew that was going to --
MR. YANNETTI: They certainly were not being marked feet away from each other, several feet, correct?
MR. O'HARA: No, sir.
MR. YANNETTI: And you are aware that Lieutenant Tully photographed five pieces of plastic that day, are you not?
MR. O'HARA: I'm not sure. I've never seen the photos until probably about a week ago, sir.
MR. YANNETTI: In any case, you did say to the state police detective unit at the end of the search that if they wanted you and your team to come back out during daylight hours, you would, correct?
MR. O'HARA: Correct, sir.
MR. YANNETTI: So I'd like to direct your attention to six specific dates, and then I'll ask you a question: February 3rd, February 4th, February 8th, February 10th, February 11th and February 18th. Those six dates. And my question is did the lead investigator, Trooper Michael Proctor, ever call you on one of those six dates to come back to the scene to conduct a further search?
MR. O'HARA: No, he did not.
MR. YANNETTI: I have nothing further.
JUDGE CANNONE: Okay. Redirect, Mr. Lally?
MR. LALLY: Just briefly, Your Honor.
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: So, Lieutenant O'Hara, with respect to both yourself and Lieutenant Tully as far as being dispatched, that decision comes from above both of your heads with respect to each of your units; is that fair to say?
MR. O'HARA: That's correct, sir.
MR. LALLY: You were asked some questions about a daily journal. Can you describe for the jury sort of what that is or what kind of information would typically be kept in that?
MR. O'HARA: That would just be our day-to-day activities. We'll give a quick gist of what we're doing each day. It would be more general. It doesn't get too thorough.
MR. LALLY: You had made mention during your testimony of some other documentation that would be more specific; is that correct?
MR. O'HARA: Correct, sir.
MR. LALLY: And what would some of those be and how would that be more specific?
MR. O'HARA: That's a report that gets generated through our mission manager software. So it creates a little bit more detailed response.
MR. LALLY: And are you familiar with an AVL?
MR. O'HARA: I am. Yes, sir.
MR. LALLY: And what is an AVL?
MR. O'HARA: It is the Geotab GPS on a cruiser. It's an automatic vehicle locator system.
MR. LALLY: And the vehicle that you were operating that day, was that equipped with an AVL?
MR. O'HARA: Yes, it was, sir.
MR. LALLY: And is that how you're able to tell the precise time of your arrival on scene?
MR. O'HARA: Correct, sir.
MR. LALLY: As well as each member of your unit; is that correct?
MR. O'HARA: Correct, sir.
MR. LALLY: Now, as far as the items and where they were, again, I'd just ask, in the photographs that were marked as exhibits before, where the items were when they were located by members of your team and they were photographed as they lay, correct?
MR. O'HARA: Correct, sir. As they were discovered, they were photographed.
MR. LALLY: So regardless of inches versus feet versus whatever distance it was, you didn't measure that; is that correct?
MR. O'HARA: We did not. No, sir.
MR. LALLY: But, as far as where they were actually discovered or where they were recovered. They were photographed where they were when you found them, correct?
MR. O'HARA: Correct, sir.
MR. LALLY: Nothing further.
JUDGE CANNONE: All right, Lieutenant. You are all set, sir.
MR. O'HARA: Thank you, Your Honor. I appreciate it.
(Whereupon, the witness is excused.)
JUDGE CANNONE: All right. Mr. Lally, your next witness, please.
MR. LALLY: Yes, Your Honor. The Commonwealth would call Ms. Maureen Hartnett to the stand.