Commonwealth v. Read — Trial ArchiveBrian Tully — Cross
804 linesCROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Good morning, Lieutenant Tully.
MR. TULLY: Good morning.
MR. JACKSON: I'm not going to go in any particular order. So forgive me if I bounce around just a little bit. You indicated on direct examination this morning that you didn't seek a search warrant for 34 Fairview, the interior of 34 Fairview, correct?
MR. TULLY: Yes.
MR. JACKSON: And, to your knowledge, nobody under your supervision sought such a search warrant, either, correct?
MR. TULLY: Correct.
MR. JACKSON: You explained that in your mind there was no probable cause to seek a search warrant for the interior of the home; is that right?
MR. TULLY: Yes.
MR. JACKSON: But you also admitted that you didn't seek consent for which you don't have to have probable cause if you get consent, correct?
MR. TULLY: Correct.
MR. JACKSON: You could ask me right now, hey, Alan, can I look at your cell phone? If I say, sure, you do your thing, right?
MR. TULLY: I could.
MR. JACKSON: But for a court to order that I hand over my cell phone, you've got to get a search warrant and sign an affidavit and get a court to agree with it, correct?
MR. TULLY: Yes.
MR. JACKSON: You've applied for a myriad of search warrants in your career, I'm guessing?
MR. TULLY: Yes.
MR. JACKSON: Very experienced, correct?
MR. TULLY: Supposedly.
MR. JACKSON: And I expect that there have been circumstances, Lieutenant Tully, in which you've sought a search warrant and the judge, says, eh, no. I don't think there's enough here, correct?
MR. TULLY: Yes.
MR. JACKSON: You don't get in trouble for that, correct?
MR. TULLY: With whom? I -- no.
MR. JACKSON: With the court?
MR. TULLY: No.
MR. JACKSON: It's not illegal?
MR. TULLY: It's not illegal.
MR. JACKSON: You don't get sanctioned for it. You don't get your pay docked because you don't get a search warrant based on a affidavit, correct?
MR. TULLY: Correct.
MR. JACKSON: So there is no real sanction in seeking it if you, in good faith, believe there is a reason to seek it, correct?
MR. TULLY: Outside of the time that it takes to author it and put it together and go to the Court?
MR. JACKSON: Of course.
MR. TULLY: Yes. There is no sanction.
MR. JACKSON: Of course. But, in a homicide investigation, you're not going to fail to do certain investigative tasks because it takes time. You're going to do what is necessary for the investigation, correct?
MR. TULLY: Yes.
MR. JACKSON: Of course. You indicated that you did not believe that there was information sufficient that y'all had at the very initial stages of the investigation to seek a search warrant or to ask for consent, correct?
MR. TULLY: Yes.
MR. JACKSON: But you did know the following: In the initial moments of the -- the beginning of the investigation, you were aware that John O'Keefe had been invited to a party inside a home, correct?
MR. TULLY: Yes.
MR. JACKSON: You knew that that home was located at 34 Fairview?
MR. TULLY: Yes.
MR. JACKSON: You also knew that John O'Keefe arrived at 34 Fairview, correct?
MR. TULLY: We believe so, yes.
MR. JACKSON: You also knew at the time that he had been, for want of a better phrase, partying with the individuals who were inside the home, correct, expected to meet at the house?
MR. TULLY: They were at a bar previous to that, yes.
MR. JACKSON: You're aware that a drinking glass was found in the yard attendant to or close to, adjacent to,s where Mr. O'Keefe's body was found?
MR. TULLY: Yes.
MR. JACKSON: That drinking glass had been broken, correct?
MR. TULLY: Yes.
MR. JACKSON: You're aware that drinking glasses are commonly found inside homes, right?
MR. TULLY: As well as bars.
MR. JACKSON: As well as bars. But, at that point, you didn't know. It's just a broken glass, correct?
MR. TULLY: It's a broken glass. Correct.
MR. JACKSON: You also know that he was found without a coat on?
MR. TULLY: Yes.
MR. JACKSON: Are coats normally worn outside or inside?
MR. TULLY: User's choice.
MR. JACKSON: Fair enough. Eighteen degrees, you would expect that if someone was outside, they'd have a coat on, correct?
MR. TULLY: I'm the kind of person who wears shorts throughout the year. I'll often go without a jacket.
MR. JACKSON: All right. A true Bostonian.
MR. TULLY: Yes, sir.
MR. JACKSON: He didn't have any coat, glove, scarfs, nothing like that?
MR. TULLY: Correct.
MR. JACKSON: He had no winter gear on whatsoever, correct?
MR. TULLY: Correct.
MR. JACKSON: Under ordinary circumstances, and you may be the exception, but under ordinary circumstances, if someone was out in 18-degree weather, you might expect that they would have some winter garb on, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You would also -- you certainly would expect that if someone took their coat, their glove, their hat, their winter gear off, they might leave it inside the house, right, rather than outside the house?
MR. LALLY: Objection.
JUDGE CANNONE: I'll let you answer that.
MR. TULLY: It's probably predicated on where you take it off and your relationship to the location.
BY MR. JACKSON:
MR. JACKSON: Right. A reasonable assumption might be the winter gear might be inside the house?
MR. LALLY: Objection.
JUDGE CANNONE: Is that a reasonable assumption, Detective Lieutenant?
MR. TULLY: No, Your Honor.
BY MR. JACKSON:
MR. JACKSON: It's not reasonable that he would have his jacket inside the house? You wouldn't just assume that?
MR. TULLY: You're using the term "the house." Are you talking about 34 Fairview?
MR. JACKSON: That house?
MR. TULLY: 34 Fairview?
MR. JACKSON: Correct.
MR. TULLY: No, it's not reasonable.
MR. JACKSON: You didn't think it was reasonable at the time?
MR. TULLY: I still don't.
MR. JACKSON: To even ask? He could have even had a jacket off inside the house. And I'm talking about at the time, the initial stages of the investigation.
MR. TULLY: Who am I asking this question to?
MR. JACKSON: So I'm asking if you believe it was reasonable if a man is found 30 feet outside the front door of a home and he's got no winter gear on whatsoever that perhaps he came from inside the home, not having donned his winter gear?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that, Detective Lieutenant?
MR. TULLY: It's not reasonable given other information I had.
BY MR. JACKSON:
MR. JACKSON: You also know that he didn't have a shoe on, correct?
MR. TULLY: Yes.
MR. JACKSON: Where you might look for the shoe if you didn't find it out by his body initially?
MR. TULLY: Well, the question is not accurate to the facts that we had at that time.
MR. JACKSON: Well, the facts that you had at the initial stages -- I'm talking about just after 6:37, 7:30 in the morning when the investigation was beginning. During those times, you didn't have any information about where the other shoe was except he just didn't have a shoe on at the hospital, correct?
MR. TULLY: We didn't know there was a shoe not accounted for until afternoon time.
MR. JACKSON: So when you did find out that there was a show unaccounted for, one place to look might be outside, correct?
MR. TULLY: Yes.
MR. JACKSON: And another place to look might be inside the home, correct?
MR. TULLY: We looked at the former and we located that.
MR. JACKSON: You also are aware that a body that's being dragged by the shoulders could easily lose a shoe?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Have you ever experienced a homicide in which a body is dragged and you're aware of a shoe being pulled off while the body is being dragged?
MR. TULLY: Objection.
JUDGE CANNONE: I'll allow that.
MR. TULLY: I don't have experience with that.
BY MR. JACKSON:
MR. JACKSON: It's certainly not outside the realm of possibility as a professional investigator, right?
MR. TULLY: It's possible.
MR. JACKSON: You're also aware that at least initially it appeared from accounts that John O'Keefe may have been involved in a physical altercation, correct?
MR. TULLY: It's possible.
MR. JACKSON: As a matter of fact, that was reported by one of your subordinates, Yuriy Bukhenik, to the medical examiner's office, right?
MR. TULLY: As a possibility, yes.
MR. JACKSON: As a possibility. And you're aware that your other subordinate, Trooper Proctor, according to certain information he had gotten from first responders, also believed that a physical altercation was possible, as well?
MR. TULLY: It was possible, yes.
MR. JACKSON: Okay. And you also knew that the house would be a normal location to have other individuals who might have been involved in that physical altercation?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that, Detective Lieutenant?
MR. TULLY: An altercation can take place anywhere.
BY MR. JACKSON:
MR. JACKSON: Exactly.
MR. TULLY: And people can often travel from the location of the altercation miles away to another location.
MR. JACKSON: Or they could travel 30 feet outside, as well, correct?
MR. TULLY: Yes.
MR. JACKSON: Okay. In the early morning hours of -- well, let's say the hours following your Massachusetts State Police initiation or engagement in this investigation, you became aware of Brian Higgins, correct?
MR. TULLY: Yes.
MR. JACKSON: That name was bandied about as a potential witness in the investigation, correct?
MR. TULLY: Yes.
MR. JACKSON: And you're aware that Brian Higgins indicated that he saw a tall, dark-haired man enter the home after he arrived, correct?
MR. TULLY: I'm not aware of that.
MR. JACKSON: And the reason you're not aware of it, Lieutenant Tully, is because nobody bothered to interview Brian Higgins until February 10th, right?
MR. LALLY: Objection.
JUDGE CANNONE: So in that form, it will be sustained. Ask it differently, Mr. Jackson.
BY MR. JACKSON:
MR. JACKSON: When was Brian Higgins first interviewed?
MR. TULLY: February 7th.
MR. JACKSON: 7th? 10th? Yeah. In February, not January 29th, certainly?
MR. TULLY: Correct.
MR. JACKSON: Although he was known to be inside the house, correct?
MR. TULLY: Yes.
MR. JACKSON: So had you known that, had you had the information, for instance, that Brian Higgins admitted to seeing a tall, dark-haired man walk in the house, that might have changed the complexion of your investigation at that time?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that, Detective Lieutenant?
MR. TULLY: In the off chance that Mr. Higgins presumably had said something like that, I would certainly need more information describing this person.
BY MR. JACKSON:
MR. JACKSON: Right.
MR. TULLY: I would ask a series of questions to narrow it down to make sure that this person was John O'Keefe.
MR. JACKSON: Right. Exactly. That would just be a normal part of the investigation. You'd just take Evidence "A" and link it to Evidence "B," to Evidence "C." That would be the normal way to do an investigation, correct?
MR. TULLY: Normally follow the evidence. Correct.
MR. JACKSON: Correct. But, in point of fact, nobody did seek a warrant to go inside the house, correct?
MR. TULLY: Correct.
MR. JACKSON: Nobody did seek to have a forensic team go inside the house and look?
MR. TULLY: Correct.
MR. JACKSON: And nobody asked for consent?
MR. TULLY: Correct.
MR. JACKSON: I want to ask you about the sally port video if I could. Did you obtain a copy of any video surveillance footage from Canton Police Department?
MR. TULLY: Yes.
MR. JACKSON: Okay. If you can, tell me which footage you obtained and where. There's several videos, Lieutenant, and it can be confusing. So if you could be as detailed as possible, explain what footage you gathered and when you gathered it.
MR. TULLY: Most recently, and the date escapes me, but it's within the last couple of months, I had contacted Chief Helena Rafferty of the Canton Police Department and asked her to burn another copy or create another copy of the sally port video during a certain time period on January 29th to ensure that video that we had received previously was all of the records responsive to that request.
MR. JACKSON: And you found out that the video that you received earlier was not, in fact, completely responsive because there was a video left out, right?
MR. TULLY: I didn't do a one-to-one comparison. I had just made a request.
MR. JACKSON: Ultimately, you did receive a video of the interior of the sally port, correct?
MR. TULLY: Yes.
MR. JACKSON: And can you tell me, did you look at that? Did you review that video?
MR. TULLY: Quickly. Not the whole thing.
MR. JACKSON: Okay. Was there anything of note about that interior video -- by the way, let me ask you another question, Lieutenant Tully, just to clarify. There is a very grainy, dark, almost black video of the interior, correct? You've seen that one?
MR. TULLY: Yes.
MR. JACKSON: Or excerpts of it?
MR. TULLY: Yes.
MR. JACKSON: And that video is missing some pretty significant time frames throughout the video?
MR. TULLY: I didn't review the whole thing, but I'm aware of that video existing.
MR. JACKSON: Fair enough. Then there is another video that's pretty clear, right?
MR. TULLY: Yes.
MR. JACKSON: Okay. I'm asking you about the clear video. Did you make any note about anything unusual about that video?
MR. TULLY: No. But, again, I didn't really review it.
MR. JACKSON: You didn't review it with any detail?
MR. TULLY: Correct.
MR. JACKSON: Did you make a note that that video was inverted?
MR. TULLY: I did not.
MR. JACKSON: Did you make a note about the timestamp on the video either being correct and properly positioned or inverted?
MR. TULLY: No.
MR. JACKSON: Did you give that video to Trooper Proctor?
MR. TULLY: I believe I gave it to Sergeant Bukhenik.
MR. JACKSON: Sergeant Bukhenik? And then what did Sergeant Bukhenik do with it?
MR. TULLY: Reviewed it.
MR. JACKSON: Okay. Is that somehow uploaded onto the Massachusetts State Police computer system somehow for safekeeping?
MR. TULLY: No. We'll hold it within the district attorney's office on that server, you know -- the MSP.
MR. JACKSON: So it is uploaded up on some sort of server?
MR. TULLY: We will memorialize it somewhere, yes.
MR. JACKSON: Did Chief Rafferty give it to you on a thumb drive or a disk or how was it physically provided?
MR. TULLY: I don't know. I didn't receive it. She dropped it off at the office. I remember a thumb drive.
MR. JACKSON: You remember a thumb drive? All right. And then it's uploaded to the system and the case officer would have access to that system?
MR. TULLY: Yes.
MR. JACKSON: And, in this case, that would be Trooper Proctor?
MR. TULLY: Yes.
MR. JACKSON: Did you notify Trooper Proctor, when I say "immediately," reasonably quickly after you got notice that the video had been dropped off by Chief Rafferty?
MR. TULLY: I informed Sergeant Bukhenik.
MR. JACKSON: Okay. And do you know as you sit here -- you may not. As you sit here, do you know if Sergeant Bukhenik reasonably quickly informed Trooper Proctor that that video was just delivered?
MR. TULLY: I don't know when or where that notification was made.
MR. JACKSON: As you sit here now, you are aware that Trooper Proctor is aware of that video and had access to it?
MR. TULLY: Yes.
MR. JACKSON: Okay. Yesterday, there was some testimony about taillight pieces that were found at the location, correct?
MR. TULLY: Yes.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Your Honor, may I approach the clerk magistrate with a question?
JUDGE CANNONE: Go ahead.
(Whereupon, there was a discussion off the record.)
MR. JACKSON: With the Court's permission, I'd ask if we could have the evidence bags that were entered into evidence yesterday?
JUDGE CANNONE: Okay. You may.
BY MR. JACKSON:
MR. JACKSON: Before I get to the evidence bags, Lieutenant Tully, maybe a couple more questions about the sally port video. You indicated that you received additional video from Chief Rafferty once she dropped it off. You said within a couple of months?
MR. TULLY: Additional, that package, yes.
MR. JACKSON: Okay. What was the original sally port video that you received? In other words, what were you following up on?
MR. TULLY: What you had previously described as a grainy, blackish video.
MR. JACKSON: Okay. And so just to be clear and close that loop, when did you receive that video, if you can tell us?
MR. TULLY: Which one, the grainy one?
MR. JACKSON: The grainy one.
MR. TULLY: Earlier in the investigation.
MR. JACKSON: A year ago? Two years ago?
MR. TULLY: I don't recall.
MR. JACKSON: Do you believe it was pretty early on in the investigation?
MR. TULLY: I don't recall.
MR. JACKSON: Do you know what the mechanism was that you received that -- if Chief Rafferty is the one that gave over the clear video, how did you get the grainy video?
MR. TULLY: I don't know.
MR. JACKSON: Was it you that received it or do you believe that you commissioned Trooper Proctor to go get that video?
MR. TULLY: That would have been a task for Sergeant Bukhenik or Trooper Proctor or someone else from the unit.
MR. JACKSON: So the reason you don't know is because you didn't personally do it?
MR. TULLY: Correct.
MR. JACKSON: All right. Yesterday you testified that it's obviously your responsibility as not just the chief of the unit but as the evidence officer to maintain and protect the integrity of the physical evidence that's found under your supervision, correct?
MR. TULLY: Yes.
MR. JACKSON: You indicated that you took photographs of the items that were recovered on that initial SERT search and you took those photographs in place where they were found, correct?
MR. TULLY: Yes.
MR. JACKSON: With the exception of one of the photos you indicated that it had been moved by a shovel and then you instructed the individual to put it back down where it was found and that's the point at which you photographed it, correct?
MR. TULLY: Yes.
MR. JACKSON: You took an establishing shot and then a closer shot and then I think even a third close-up shot, correct?
MR. TULLY: Yes.
MR. JACKSON: And you indicated pretty clearly yesterday the evidence that you found at the scene was a red plastic taillight piece that was recovered first. Then three feet to the south of that, the shoe was recovered and then one to two feet south of that another red plastic piece and then a clear plastic piece next to that, correct?
MR. TULLY: You've got the last two inverted. Clear then red.
MR. JACKSON: Inversion. It's becoming a theme. Sorry about that. So it was the clear piece --
JUDGE CANNONE: I'm going to strike that.
BY MR. JACKSON:
MR. JACKSON: It was a clear piece and then a red piece next to the clear piece?
MR. TULLY: Yes, sir.
MR. JACKSON: Three pieces of plastic in total and a shoe?
MR. TULLY: No. With the clear piece, there were two pieces with it. So clear plastic. Multiple pieces of the clear plastic.
MR. JACKSON: So yesterday when we saw the photographs that you testified to, there was one piece of clear plastic that was photographed, right?
MR. TULLY: Two.
MR. JACKSON: Didn't the photograph have one sort of arc- shaped clear piece of plastic that you described as having, did you say, dimples or stippling?
MR. TULLY: Yes. I believe I said dimples.
MR. JACKSON: Okay. What was the second photo?
MR. TULLY: The next photo that was displayed was the second piece of a clear plastic taillight.
MR. JACKSON: So in fact, that would be four pieces of plastic?
MR. TULLY: Yes.
MR. JACKSON: Okay. But yesterday you testified that you found three pieces of plastic. And, in your report, you reported that you found three pieces of plastic, correct?
MR. TULLY: I didn't number the pieces of plastic, if I recall my report correctly. I said we found clear plastic. And, as I displayed out of the bag, it was two pieces of clear plastic that we --
MR. JACKSON: Right. But there was only a photograph of one.
MR. TULLY: No, there wasn't.
MR. JACKSON: And your report says three total pieces of plastic, doesn't it?
MR. TULLY: No.
MR. JACKSON: Well, let's take a look.
JUDGE CANNONE: Do you have your report with you, Detective Lieutenant?
MR. TULLY: Not that one, Your Honor.
MR. JACKSON: If I may have just a moment, Your Honor?
JUDGE CANNONE: Sure.
MR. JACKSON: Your Honor, is it possible to take our recess so I don't waste the jurors' time and I can use my time wisely?
JUDGE CANNONE: Sure. Sure. All right. Jurors, we will take our morning recess.
(Whereupon, the jury is escorted from the courtroom and a recess is taken.)
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: All right. Are you all set, Mr. Jackson?
MR. JACKSON: I am, Your Honor. Thank you for the time.
JUDGE CANNONE: Sure. Go right ahead.
BY MR. JACKSON:
MR. JACKSON: Lieutenant Tully, we were talking just before the break about the SERT search on January 29th, 2022. Obviously, it's important to be accurate in terms of the memorialization of things that are found of note during a search, correct?
MR. TULLY: Yes.
MR. JACKSON: And the way that you would normally memorialize something like that would be in a police report, correct?
MR. TULLY: That's one method.
MR. JACKSON: You might have handwritten notes that would attend a search, correct?
MR. TULLY: Yes.
MR. JACKSON: You might videotape part of it or all of it?
MR. TULLY: I could.
MR. JACKSON: And then you could photo document it, as well?
MR. TULLY: Yes.
MR. JACKSON: But, ultimately, the circumstances surrounding how something was found or what was found at the time is best done in a memorialization in a police report, correct?
MR. TULLY: That is one method, yes.
MR. JACKSON: And that is the official record of what was done at the time and who did it, correct?
MR. TULLY: Yes.
MR. JACKSON: And you did, in fact, draft a police report as it pertains to the search that was done by the SERT team on February -- I'm sorry -- January 29th, 2022?
MR. TULLY: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: If you would take a look at the face page of that and tell me if that looks familiar to you.
MR. TULLY: It does.
MR. JACKSON: Is that your report that you utilized? Is that the report that you wrote, rather, not utilize. Is that the report that you wrote documenting the search that was conducted that you've testified to in front of this jury?
MR. TULLY: Yes.
MR. JACKSON: What's the date of that report?
MR. TULLY: February 10th, 2021, which was a typo. It should be 2022.
MR. JACKSON: Okay. So February 10th, 2022 was the date that you memorialized the information about the search, correct?
MR. TULLY: Yes.
MR. JACKSON: Obviously, that was much, much closer in time than today, correct?
MR. TULLY: Yes.
MR. JACKSON: Or yesterday, correct?
MR. TULLY: Correct.
MR. JACKSON: If you turn to Paragraph 3, could you review that paragraph and tell me after you review it if that refreshes your recollection about exactly what you indicated was found by you and the SERT team on January 29th, 2022?
MR. TULLY: My recollection of what was located remains the same. I do see that the report states that it was a piece of clear plastic.
MR. JACKSON: Okay. So in fact, your report says that at 17:45 hours, which is what time --
MR. TULLY: 5:45 p.m.
MR. JACKSON: -- the SERT team located, quote, "a piece of red plastic," correct?
MR. TULLY: Yes.
MR. JACKSON: And then it goes on to say that it was consistent with brake light material from a motor vehicle, right?
MR. TULLY: Yes.
MR. JACKSON: Then if you look down a couple of other sentences, you talk about the shoe that was then recovered, correct?
MR. TULLY: Yes.
MR. JACKSON: Then if you look at the second to the last sentence (as read), "A few feet south from the sneaker, a piece of clear plastic consistent with clear lens of a motor vehicle was located," correct?
MR. TULLY: Yeah. The quote is a second piece of red plastic. Yes.
MR. JACKSON: Well, actually, the sentence before that. The sentence just above that, starting "with a few feet south."
MR. TULLY: Yes.
MR. JACKSON: It reads (as read), "A few feet south from the sneaker, a piece of clear plastic."
MR. TULLY: That's not what it says. Would you like me to read it?
MR. JACKSON: Oh, I'm reading it. Sure. Read it.
MR. TULLY: Okay. The sentence is (as read), "Several feet south of the clear plastic" --
MR. JACKSON: Lieutenant Tully, the sentence above that, before that.
MR. TULLY: (As read), "A few feet south of the sneaker, a piece of clear plastic consistent with clear lens of a motor vehicle was located."
MR. JACKSON: Right. So in your lexicon, a piece means singular, does it not?
MR. TULLY: Yes.
MR. JACKSON: If you meant pieces, you would have written "pieces." You're educated, correct?
MR. TULLY: Allegedly.
MR. JACKSON: So clearly from this report that was memorialized on February 10th, you indicated that a piece of clear plastic was located, consistent with clear lens from a motor vehicle, right?
MR. TULLY: That's what it says.
MR. JACKSON: Okay. Well, it's not just what it says; it's what you wrote?
MR. TULLY: Correct.
MR. JACKSON: Then the next sentence, which is the sentence you were about to read, go ahead and read that for me, as well.
MR. TULLY: (As read), "Several feet south of the clear plastic, a second piece of red plastic was located."
MR. JACKSON: Okay. Simple math. According to your report written on February 10th, a piece of red plastic was found first. Then a piece of red plastic -- sorry -- of clear plastic was found. Then a piece of red plastic was found thereafter, correct, according to that report?
MR. TULLY: Yes.
MR. JACKSON: Then you go on in the following paragraph to reiterate, just to clear up any doubt about what was found, and the last sentence reads (as read), "The sneaker and three pieces of plastic were secured as evidence," correct?
MR. LALLY: Objection.
JUDGE CANNONE: Overruled. What's the objection?
MR. LALLY: Form.
JUDGE CANNONE: I'll allow it.
BY MR. JACKSON:
MR. JACKSON: Is that what it says?
MR. TULLY: Yes.
MR. JACKSON: Okay. Then yesterday you were asked to open these two evidence envelopes -- evidence bags, correct?
MR. TULLY: Could I take a look?
MR. JACKSON: Of course. Of course. Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Those are the bags that you opened yesterday, correct?
MR. TULLY: Yes.
MR. JACKSON: You indicated yesterday in front of the jury -- you didn't indicate. You pulled out two pieces of clear plastic, did you not?
MR. TULLY: I did.
MR. JACKSON: That was in Bag -- I want to say that was in Bag 570. Why don't we do this: Can you please open with the Court's permission, can you please open Bag 570 -- I'm sorry -- Exhibit 570 in that bag and just look inside?
MR. TULLY: I didn't bring gloves with me, Your Honor.
JUDGE CANNONE: I think there might be some on the stand there inside that.
MR. TULLY: Attorney Jackson, could you just repeat your question again?
BY MR. JACKSON:
MR. JACKSON: Of course. Of course, Lieutenant. Let's start with 570.
MR. TULLY: Okay.
MR. JACKSON: I don't remember which one it is. So if you could just open it and look inside and describe for us which items are inside that bag?
MR. TULLY: So 570, the description is red pieces of hard plastic taillight cover contained inside this bag.
MR. JACKSON: If you could just look down there and tell me, do you see red plastic pieces?
MR. TULLY: Yes.
MR. JACKSON: Yesterday, you pulled out two pieces and indicated that was what was contained in the bag, correct?
MR. TULLY: Correct.
MR. JACKSON: Will you take another closer look?
MR. TULLY: As I take a closer look, there are two pieces and there is a very small fragment that remains in the bag.
MR. JACKSON: Can you pull that fragment out, as well?
MR. TULLY: (Witness complies.)
MR. JACKSON: Can you show that to the jury?
MR. TULLY: (Witness complies.)
MR. JACKSON: Okay. You can go ahead and replace that. So in total, Lieutenant Tully, how many pieces of red plastic are in that evidence bag?
MR. TULLY: As we sit here today, there are three.
MR. JACKSON: Thank you. You can go ahead and close that and if you could open up the second bag.
MR. JACKSON: With the Court's permission, may I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Your Honor, may I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: If you wouldn't mind, the next bag is Exhibit 571; is that right?
MR. TULLY: Yes.
MR. JACKSON: Could you please open that and let's go through the same process. Just look inside and tell us what you see.
MR. TULLY: Inside 571 there are two pieces of clear plastic.
MR. JACKSON: All right. And you can go ahead and replace those.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Thank you, Lieutenant. Those two bags are supposed to represent what was found by the SERT team on January 29th of 2022, correct?
MR. TULLY: Yes.
MR. JACKSON: There's five pieces of plastic, two red -- sorry -- three red, two clear, correct?
MR. TULLY: As we sit here today, yes.
MR. JACKSON: My question, Lieutenant Tully, is where did the other pieces of plastic come from?
MR. TULLY: Can you be more specific? Which pieces?
MR. JACKSON: Where did the extra two pieces of plastic come from in those evidence bags?
MR. TULLY: Well, it appears to me that small fragment I pulled out may have potentially come from a larger piece.
MR. JACKSON: Just to clear that up, you believe as you sit here that that smaller piece was broken off from one of the larger pieces?
MR. TULLY: Again, I'm making a big assumption here at your request.
MR. JACKSON: Okay.
MR. TULLY: So yes. That's what it appears to me by looking in the bag.
MR. JACKSON: And, by the way, Lieutenant, this isn't a trick question. I'm not asking you to assume anything. You were there and you recovered the pieces and you described recovering three items of evidence, correct?
MR. TULLY: No.
MR. JACKSON: Didn't you just read in your report -- I'll read it again. The last sentence (as read), "The sneaker and three pieces of plastic were secured as evidence." You wrote that.
MR. TULLY: That's four.
MR. JACKSON: Sorry. I said items of evidence. Items of plastic. Let's leave the sneaker out of our discussion for the time being.
MR. TULLY: Okay.
MR. JACKSON: You were the one that conducted the search, correct?
MR. TULLY: The SERT team conducted the search. I was present.
MR. JACKSON: You memorialized the search?
MR. TULLY: Yes.
MR. JACKSON: You were there photographing the things that were covered in the search?
MR. TULLY: Yes.
MR. JACKSON: And, ultimately, you were responsible for bagging those items up, correct?
MR. TULLY: Yes.
MR. JACKSON: There are five items in that bag or in those two bags, right, just the plastic?
MR. TULLY: Correct.
MR. JACKSON: And, yet, your report very clearly says there were three items of plastic evidence recovered at the scene, correct?
MR. TULLY: It does.
MR. JACKSON: So my question once again is, where did the extra two items come from, the two pieces of plastic?
MR. TULLY: As memorialized on the bag, it says (as read) "pieces of clear plastic." So I'll take the hit that my report does not properly memorialize it. But I would argue that the handwritten notes on the bag that are contemporaneous to the collection of the evidence would be more accurate as is my memory of two clear plastic things being collected. Now, as to the third piece, again, I'm making an assumption that it appears that that is a small piece that was separated from the other two pieces.
MR. JACKSON: You don't know that that small piece was separated from the other two by being broken off, do you?
MR. TULLY: No, I don't.
MR. JACKSON: This is just a guess on your part, right?
MR. TULLY: It's a guess. The bags were out of our custody at the crime lab for a period of time. They had done an analysis. We did an evidence review with you, yourself and other defense counsel on December 1st of last year when we pulled all of the evidence out. It was memorialized by your investigator and it was put back in the bags.
MR. JACKSON: But you didn't see our investigator snapping pieces off of plastic, right?
MR. TULLY: He did not.
MR. JACKSON: I want to shift gears for a second, Lieutenant, and talk a little bit about the cell records that you testified to, specifically the Verizon call records that you testified about. During your training, the 200-plus hours of training that you had, you've learned how to read Verizon records to determine cell towers that are used in your investigation, correct?
MR. TULLY: Yes.
MR. JACKSON: You were also taught how to read Verizon call records to determine the sector or the side that a cell tower is pinging, for lack of a better word, called a cell face, correct?
MR. TULLY: Yes.
MR. JACKSON: All right. One of the --
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: May I, Lieutenant? One of the documents that you rely on pretty heavily is a -- ultimately, it's a call record that gives you certain information provided by whoever the carrier is, Verizon, AT&T, T Mobile, whoever, right?
MR. TULLY: Yes.
MR. JACKSON: Do you recognize the document that's in front of you or the portion of the call record that's in front of you?
MR. TULLY: It appears to be a portion from the call detail record in reference to it.
MR. JACKSON: My questions about this are relatively simple. There is a sector number that provides information that describes the directionality, if you will, of the target phone number, which part of the cell tower that target phone number or that target device was facing, correct?
MR. TULLY: Yes.
MR. JACKSON: In your maps, did you include any of the cell face data about which portion of the cell tower was pinging vis-a-vis the phone that was being tracked?
MR. TULLY: No. Can I explain why I made that decision?
MR. JACKSON: Sure. Please do.
MR. TULLY: The trouble with depicting and making exhibits when relative to cell phone records is you don't want to make the map too complicated. So as I describe it to the jury, I want to make sure that the record is clear. Now, I don't -- typically, we'll use the sector as part of my maps. I would argue that it gives greater deference to the defendant because the phone could be anywhere within a 360-degree area of the antenna as opposed to a narrower 120-degree area around that antenna. So for the purposes of making a clear depiction, I typically will not use sector unless it's absolutely important to show that a handset was ina specific location.
MR. JACKSON: And so you did use -- I'm sorry. You did not include the sector information on the maps that you provided both to Mr. Lally, which he showed to the jury, and provided us, correct?
MR. TULLY: Yes, as relative to the CSLI ones, yes.
MR. JACKSON: Okay. So in point of fact, according to the map, at least, wherever that little triangle is, that red triangle that you use to denote the cell tower or the antenna, the responsive phone, a device, could be anywhere on a 360-degree azimuth from that antenna, correct?
MR. TULLY: Yes.
MR. JACKSON: Okay. I want to ask you about the one map that was related to 5:20 a.m. to 5:37 a.m. Do you remember that?
MR. TULLY: Not off the top of my head.
MR. JACKSON: Okay. There were several maps shown. Let me see if I've got a copy.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: That is a copy of a page of an exhibit that's already been marked and entered into evidence. Do you recognize that?
MR. TULLY: Yes.
MR. JACKSON: And that's a copy of your map that you did dealing with eNB-ID57021, correct?
MR. TULLY: Yes.
MR. JACKSON: And the time frame was 5:20 a.m. to 5:37 a.m.; is that right?
MR. TULLY: Yes.
MR. JACKSON: All right. And, by the way, do you know what eNB-ID stands for?
MR. TULLY: No. That's why the legend key is helpful. It's node, is the NB, but I'm unsure on the e.
MR. JACKSON: Evolved node B identifier, right?
MR. TULLY: Is that a question? Yeah. That's possible.
MR. JACKSON: It is my question.
MR. TULLY: Okay.
MR. JACKSON: Does that refresh your recollection that's what it means?
MR. TULLY: I'd have to look at the key again, but that sounds right.
MR. JACKSON: So if that's what it stands for, an evolved node B identifier, and then a series of numbers after that is simply sort of the proper name for a particular tower?
MR. TULLY: Correct.
MR. JACKSON: No two towers have the same eNB-ID, correct?
MR. TULLY: Correct.
MR. JACKSON: Okay. With regard to -- and I'm just going to call it ID57021. Do you see what appears, on your map what appears, to be the cell tower that is associated with that I.D. number, 57021?
MR. TULLY: Yes.
MR. JACKSON: And there is one address that is denoted on your map, correct? Is that 34 Fairview?
MR. TULLY: No. There's multiple.
MR. JACKSON: Okay. What are the other addresses that you've noted on your map?
MR. TULLY: One Meadows Ave. and Waterfall Bar & Grille.
MR. JACKSON: Okay.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: If I could hand you another map, does that appear to be a Google map?
MR. TULLY: Yes.
MR. JACKSON: Does that generally track the map that you created, the darker map that you created, meaning it's the same basic scale?
MR. TULLY: It is not the same scale.
MR. JACKSON: How much different is that scale?
MR. TULLY: The one you've handed me is a zoomed-in version of the map I created.
MR. JACKSON: Okay. Do you recognize it as being a true and accurate reflection of a Google map that's just zoomed in a little bit on the same basic area?
MR. TULLY: As you just described, it appears to be a Google map creation.
MR. JACKSON: Okay. And do you see two addresses that are denoted on that Google map?
MR. TULLY: Yes.
MR. JACKSON: What are those two addresses?
MR. TULLY: 34 Fairview Road and [REDACTED].
MR. JACKSON: And, as you look at that Google map with both of those, given your experience with both of those addresses, do those appear to be denoted accurately on that Google map?
MR. TULLY: It does. I would note that you can't see the roads, really, on this map that you handed me.
MR. JACKSON: Understood. I'm not going to ask you a question about the roads.
MR. TULLY: It's a white blur.
MR. JACKSON: Okay. But does it look like that's where 34 Fairview is and that's where [REDACTED] is?
MR. TULLY: Yeah.
MR. JACKSON: Then I'm going to ask you for the third item that's denoted on the map, and that's the cell tower, 57021. Do you see that denoted on the map?
MR. TULLY: Yes.
MR. JACKSON: Does that appear to be generally accurate in terms of the spacial location of where that cell tower is?
MR. TULLY: Yes.
MR. JACKSON: I move for the admission of that item, Your Honor, that document.
MR. LALLY: No objection.
JUDGE CANNONE: Okay.
(Whereupon, map was entered and marked Exhibit 577 in Evidence.)
COURT REPORTER: Exhibit 577.
JUDGE CANNONE: Thank you.
MR. JACKSON: Thank you.
by Mr. Jackson
MR. JACKSON: Taking a look at that exhibit, would you agree that the Cell Tower 57021 is significantly closer to what's denoted as [REDACTED], the McCabe residence physically as the crow flies than it is to 34 Fairview?
MR. TULLY: I would not characterize it as significant.
MR. JACKSON: How would you characterize it?
MR. TULLY: That it is closer.
MR. JACKSON: Okay.
MR. JACKSON: May I publish, Your Honor?
JUDGE CANNONE: Okay.
BY MR. JACKSON:
MR. JACKSON: Take a look at the right portion, upper right portion of the map that I just highlighted. What does that denote?
MR. TULLY: The cell tower we previously mentioned. 57021.
MR. JACKSON: Okay. And then there is a line, just a straight line, from that cell tower down to this location. What is that location?
MR. TULLY: It's denoted on this exhibit as 34 Fairview Road.
MR. JACKSON: Okay. And do you see a legend indicating scale, how far that is?
MR. TULLY: I see numbers and miles.
MR. JACKSON: Does that appear to be reflective of, given your understanding and your experience with this location or these locations, does that appear to be a relatively accurate delineation of the distance between the cell tower and that location, and that address?
MR. TULLY: I don't know the distance between the cell tower and the address.
MR. JACKSON: Would you agree that it's around two miles?
MR. TULLY: It's roughly two miles.
MR. JACKSON: Then I'm going to ask you to take a look at the same proximity of the cell tower at the top of the screen and then the address of [REDACTED]. Do you see those two items denoted on the map?
MR. TULLY: Yes.
MR. JACKSON: And do you see the approximate distance between those two items?
MR. TULLY: I see it on the map. A All right. And does it appear to you that the distance from [REDACTED] looks like it's half the distance to 34 Fairview? A I wouldn't characterize it as it appears to be less than half.
MR. JACKSON: How would you characterize it?
MR. TULLY: My understanding of that area, I would say it's at least a mile between those two locations as the crow flies.
MR. JACKSON: Okay. Meaning between cell tower and ||
MR. TULLY: Yeah.
MR. JACKSON: Right. And that indicates approximately a mile, correct?
MR. TULLY: It does indicate that.
MR. JACKSON: And the other location indicates approximately 2.4 miles, right?
MR. TULLY: It does, indeed.
MR. JACKSON: So would you agree that a mile is less than half of 2.4 miles?
MR. TULLY: I would agree a mile is less than half than 2.4.
MR. JACKSON: Thank you.
MR. JACKSON: We can take that down.
MR. JACKSON: You also noted that there were two cell towers much, much closer to 34 -- there are two cell towers much, much closer to 34 Fairview than the 57021, correct?
MR. TULLY: Yes.
MR. JACKSON: And, as a matter of fact, you already noted for the jurors, say at 6:00 a.m. or 6:05 a.m. and thereafter when it's clear that Ms. Read was at 34 Fairview and found the body of John O'Keefe that her phone was relaying to those two towers variously, bouncing back and forth, correct?
MR. TULLY: Yes.
MR. JACKSON: Those two towers are 57171, correct? I'm sorry. I don't mean to test your memory like that.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: I am just going to give you that packet, Lieutenant. Like I said, it's not a memory test. If that helps refresh your recollection of the name of the two towers closest to 34 Fairview? Do you have that in mind?
MR. TULLY: Yes.
MR. JACKSON: Okay. So the two towers closest to 34 Fairview are 57171, correct?
MR. TULLY: Yes.
MR. JACKSON: And 57286; is that right?
MR. TULLY: Yes.
MR. JACKSON: And both of those towers picked up Ms. Read's Signal at 12:33 a.m. and again after 6:03 a.m., correct?
MR. TULLY: You asked me about 12:33. Is it okay if I refer back to the exhibit?
MR. JACKSON: Of course.
MR. TULLY: And that is correct. It's 57171.
MR. JACKSON: And then after 6:00 a.m., it was also picking up, bouncing, I think you said, bouncing back and forth, between 57171 and 57286?
MR. TULLY: Yes.
MR. JACKSON: Both of those towers were picking her up?
MR. TULLY: Yes.
MR. JACKSON: Importantly, though, between 5:20 and 5:37 a.m., neither of those two towers either picked up her phone or any signal from her phone, correct?
MR. TULLY: Correct.
MR. JACKSON: Okay. So based on those facts, it's far more likely that Karen Read was actually at Jennifer McCabe's or on her way to Jennifer McCabe's at and around 5:00 a.m. than going to 34 Fairview, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May I approach just to retrieve?
JUDGE CANNONE: Sure.
MR. JACKSON: I just want to make sure I didn't leave the marked item.
MR. TULLY: I'm sorry. Here's the marked item.
MR. JACKSON: Perfect. I want to make sure that stays there.
MR. TULLY: There were two other documents you handed me previously that are not marked.
MR. JACKSON: Okay. Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: I just want to touch very briefly on the ranging data, the RTT records. What does RTT stand for?
MR. TULLY: It depends on who you ask in Verizon. Either range to tower or ground to trip time.
MR. JACKSON: Have you ever heard realtime tool?
MR. TULLY: I have.
MR. JACKSON: Okay. So RTT has several acronyms but realtime tool is one of them, correct?
MR. TULLY: Yes.
MR. JACKSON: The RTT data is what you earlier described as a ranging data or access distance, correct?
MR. TULLY: I didn't use the term "access distance." I know that Verizon may. But yeah. I said ranging.
MR. JACKSON: So just in common vernacular, it's the distance from the tower or from the antenna to where the signal is going, correct?
MR. TULLY: Yes.
MR. JACKSON: All right.
MR. JACKSON: May I approach one more time?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Could you please review that and tell me if you recognize what's depicted on that document?
MR. TULLY: I recognize one of the entries from the RTT report.
MR. JACKSON: And it's around 5:18 in the morning, correct?
MR. TULLY: Yes.
MR. JACKSON: Okay. And you utilized this report or portions of this report, including this entry, to come up with your data, especially as it relates to ranging data, correct?
MR. TULLY: Yes.
MR. JACKSON: Do you see the column on that document called "pros duration secs"? Procedure duration secs?
MR. TULLY: I do.
MR. JACKSON: What does that mean?
MR. TULLY: That is the amount of time which this communication occurred.
MR. JACKSON: Okay. Am I correct in understanding that the length of time for the RTT event is calculated in seconds, correct?
MR. TULLY: It is.
MR. JACKSON: All right. Do you see the row in the exhibit that indicates the time 5:18 a.m.?
MR. TULLY: Yes.
MR. JACKSON: And do you see a column that's labeled, "Procedure Start Time"?
MR. TULLY: Yes.
MR. JACKSON: And right next to it there is a "Procedure End Time," correct?
MR. TULLY: Yes.
MR. JACKSON: Are those the start times and the end times that you earlier testified to in front of the jury about the event in question at 5:18 a.m. or thereabouts, the start of the interaction or the communication with the device and the end of the communication with the device?
MR. TULLY: Yes.
MR. JACKSON: When you say "communication with the device," what does that mean? What are you referring to? A phone call? A text, something?
MR. TULLY: We don't know. As I testified to, the ranging reports will create entries even unbeknownst to the user. So I have no information with this record before me about what the user was or was not doing with the phone.
MR. JACKSON: But you're testimony is that those two arcs that we saw, those respective arcs that we saw, your testimony is that this RTT data, in your view, establishes that she was on the device? Not "she," but the device was on the first are at the start time and it was on the second arc at the end time?
MR. TULLY: I'm going off the ranging that they give me.
MR. JACKSON: Right. And then you created those two arcs. I'm just trying to make sure that I understand what the definition of those two arcs are on your map.
MR. TULLY: The definition comes from the first distance and the last distance, which is denoted on this exhibit you have in front of you.
MR. JACKSON: Okay. And the first distance is what?
MR. TULLY: -82 miles.
MR. JACKSON: Okay. And the second distance is? From memory, I think it's .97?
MR. TULLY: Correct.
MR. JACKSON: All right. That's a difference of what? We can do the math.
MR. TULLY: 1.5 miles.
MR. JACKSON: .15 miles, correct?
MR. TULLY: Excuse me. Yes.
MR. JACKSON: Okay. And do you see the procedural duration column indicated on that document?
MR. TULLY: I do.
MR. JACKSON: And the procedure duration column indicates zero, doesn't it?
MR. TULLY: Yes.
MR. JACKSON: However, if we look very closely at the start time and the end time, they are not actually the same times, are they?
MR. TULLY: Correct.
MR. JACKSON: There's a difference in those two times. Can you tell the jury what that difference is?
MR. TULLY: It is four-thousandths of a second.
MR. JACKSON: .004 seconds, correct?
MR. TULLY: Yes.
MR. JACKSON: And you testified that you believed that the start and end distances for the RTT event in question indicate two different locations for that device? In other words, the start time, it was on the first arc. The end time, it was on the second arc. You don't know where on the arc but somewhere on those two arcs.
MR. TULLY: Using the ranging data, I created a map.
MR. JACKSON: I understand.
MR. TULLY: That's what I did.
MR. JACKSON: And so the device would move from the first arc to the second arc, correct?
MR. TULLY: Yes.
MR. JACKSON: Right. You're familiar with, obviously, the formula to determine speed using distance and time, correct?
MR. TULLY: Yes.
MR. JACKSON: Can you calculate for us the speed that the device would have traveled to go from the first arc to the second arc over a distance of .15 miles in four- thousandths of a second?
MR. TULLY: Not off the top of my head.
MR. JACKSON: Okay. Let me see if I can help. So distance -- I'm sorry. Speed is calculated as distance divided by time, right?
MR. TULLY: Yes.
MR. JACKSON: If you divide .15 miles by four-thousandths of a second, you come up with 37.5 miles per second; would you agree?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Can you do the calculation in your head?
MR. TULLY: No, sir.
MR. JACKSON: Do you need a calculator?
MR. TULLY: I would.
MR. JACKSON: Your Honor, if --
JUDGE CANNONE: I'd like to see counsel at sidebar, please.
MR. JACKSON: Sure.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So what was your objection, Mr. Lally?
MR. LALLY: As far as asking the witness to do a calculation, he can ask the witness as far as whether -- what he did. Asking him to do some demonstration or performance is beyond that.
MR. JACKSON: The witness was called as an expert. He was qualified as an expert and he was deemed an expert during direct examination. He's indicated that the device -- I just set the foundation. He indicated the device moved from one point to a second over a certain distance over a certain time. I don't need him to do a calculation. If you give me leave, I can do the -- I've already done the calculation, obviously. You know I don't ask a question I don't know the answer to.
JUDGE CANNONE: Right.
MR. JACKSON: I don't want to have to put him through doing the math. But, if he is the expert, he should have to do it. If he needs a calculator, I'll give him my cell phone. He can do the math. It's easy.
JUDGE CANNONE: Which do you prefer? It will come in. I don't like demonstrations without any notice of it. There is an objection to it. It's argumentative. But, if you're testing his ability here or you're challenging him as an expert on something, I'll let him ask the numbers.
MR. JACKSON: I expect he might say "I don't know."
JUDGE CANNONE: I'll let him use his own cell phone and do whatever he wants to.
MR. JACKSON: Sure.
(Whereupon, the sidebar conference concluded.)
BY MR. JACKSON:
MR. JACKSON: Lieutenant Tully, do you happen to have your cell phone with you?
MR. TULLY: No.
JUDGE CANNONE: I thought you were going to ask the other question first.
MR. JACKSON: Oh, sure. I can. I can.
BY MR. JACKSON:
MR. JACKSON: Let me ask you -- so you don't have to sit there with a cell phone in front of you, let me ask you if you would agree with this, that .15 divided by .004 is 37.5?
MR. TULLY: I'd have to write it out. I'm not sure. I'm sorry.
MR. JACKSON: If you had a calculator in front of you, could you do it?
MR. TULLY: I could.
MR. JACKSON: You don't have your cell phone with you?
MR. TULLY: I do not.
MR. JACKSON: With the Court's permission, I've got mine here or my co-counsel has one.
JUDGE CANNONE: How about can you use Madam Court Reporter's cell phone? She is closest. Can you do that?
MR. JACKSON: Sure.
MR. TULLY: Yes, Your Honor.
JUDGE CANNONE: Thank you, Madam Court Reporter.
MR. JACKSON: Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: If you could divide .15 by .004? Let me know what you come up with.
MR. TULLY: 37.5.
MR. JACKSON: So that would be -- given the fact that the distance as calculated, as indicated on that record the distance is .15 miles over the course of .004 seconds, right?
MR. TULLY: No. I would push back as to when the distance was being created. That's the first distance and last distance.
MR. JACKSON: Correct. What you indicated was the cell phone or the device was on the first arc during the first time, the start time, and on the second arc at the end time. All I'm asking is some basic math. So you would agree that if the calculation we just did or you just did is .15 miles divided by four thousandths of a second, that is 37.5 miles per second, to stay consistent, miles per second, correct?
MR. TULLY: Well, I don't agree with the premise of the question. So the --
MR. JACKSON: Well, you don't have to agree with the premise of the question. I'm asking you about the math.
MR. TULLY: Oh, the math is correct. Yes.
MR. JACKSON: The math is correct. It's miles per second, correct?
MR. TULLY: Yes.
MR. JACKSON: Based on that calculation. In order to get to miles per minute, you multiply it by 60, correct?
MR. TULLY: Yes.
MR. JACKSON: Can you do that for me, please?
MR. TULLY: Madam Clerk? The question again, sir? I'm sorry.
MR. JACKSON: Yes. Multiplying 37.5 times 60 would give us miles per minute. What is that number?
MR. TULLY: Two thousand two hundred fifty.
MR. JACKSON: And, if we wanted to go to miles per hour, which we're more familiar with, you'd multiply it by 60 again, wouldn't you? And what's that number?
MR. TULLY: One thousand thirty-five thousand -- excuse me. A hundred and thirty-five thousand.
MR. JACKSON: A hundred and thirty-five thousand miles per hour, correct?
MR. TULLY: Yes.
MR. JACKSON: So you would agree if the premise is moving from the arc, the first arc, moving .15 miles to the second arc over the courses of .004 seconds, the device would have to be traveling 135,000 miles per hour, correct?
MR. TULLY: In your question, you said 1.5 miles travel. It's .15 miles. You corrected me. I'm going to throw it back at you, sir.
MR. JACKSON: Sorry. Fair enough. Fair enough. Touche.
MR. TULLY: All right.
MR. JACKSON: -15 miles over the course of .004 seconds, the device would have to be traveling 135,000 miles per hour. That's basic math, correct?
MR. TULLY: Well, I agree with that. I would push back that's that's probably not what the record is indicating.
MR. JACKSON: You would agree that that is physically impossible, correct?
MR. TULLY: For a cell phone, yes.
MR. JACKSON: Right. And you would also agree that since that's impossible, you're not suggesting to this jury that the device moved from Arc 1 to Arc 2 in four- thousandths of a second? That can't be what you're suggesting?
MR. TULLY: I'm not suggesting that.
MR. JACKSON: Okay. In fact, what actually makes more sense is that the signal was moving to and from the device at light speed: 186,000 miles per second?
MR. TULLY: It does. Radio --
MR. JACKSON: Because you know radio waves move at what?
MR. TULLY: The speed of light.
MR. JACKSON: The speed of light: 186,000 miles per second, right?
MR. TULLY: Yes.
MR. JACKSON: Okay. If, as you indicated on direct examination, if that return signal, the bounce, is in any way refracted, meaning it takes a deviation and it's not straight because something like, I don't know, weather, precipitation or snow, then it would take longer to get back to the antenna, correct?
MR. TULLY: That's fair.
MR. JACKSON: And that could be what's reflected in that map and the distance of the two arcs; isn't that correct?
MR. TULLY: That's not my experience with these records.
MR. JACKSON: But you agree that, in fact, the device, as you indicated earlier, moved from Arc 1 to Arc 2 from the start time to the end time, that that's impossible?
MR. TULLY: No. I'm saying that the records reflect that the first time the distance was created, marked and the second time the distance was marked. That's what's represented on the map.
MR. JACKSON: Right. But you said that those are reflective of the start time and the end time, which is four- thousands of a second apart?
MR. TULLY: No. I don't know when these distances were created. It doesn't say start of procedure distance. It says first distance, last distance.
MR. JACKSON: Actually, it says --
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Procedure start time, 5:18:19.154, right?
MR. TULLY: Yes.
MR. JACKSON: Procedure end time, 5:18:19.158, right?
MR. TULLY: Yes.
MR. JACKSON: That's the distance.
MR. JACKSON: May I approach, Your Honor, one more time?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: That's the difference. That's the four- thousandths of a second, correct?
MR. TULLY: Yes.
MR. JACKSON: And, on direct examination, you said the start time and the end time are how you calculate the two different arcs, correct?
MR. TULLY: No. No.
MR. JACKSON: Are you changing your testimony?
MR. TULLY: No. The map says "first" and "last." As reflected in the record, the first distance and last distance. So one could hold the map in this record next to each other and figure out how I determined those locations depicted on the map. It doesn't say start and end time. It says "first" and "last."
MR. JACKSON: Right. But you said that it was the beginning of the communication and the end of the communication, which are both reflected on that document, Lieutenant.
MR. TULLY: Yes.
MR. JACKSON: The start time and the end time. I understand what you are saying about the distance. It's .15. Nobody is arguing about that. You're saying -- you said on direct examination that the distance was a difference between what time the first arc occurred and what time the second arc occurred. And there was a distance between it. And your testimony was the device moved from the first arc to the second arc. You just said it, right?
MR. TULLY: I'm saying the device moved from the first arc to the second arc, yes.
MR. JACKSON: And it would be impossible to do that in four- thousandths of a second, correct?
MR. TULLY: A cell phone, yes.
MR. JACKSON: You did -- one last issue and I'm going to deviate from the cell tower stuff. You got information during the course of your investigation that eyewitnesses or an eyewitness placed a Ford Edge in front of 34 Fairview in the early morning hours of January 29th, 2022, correct?
MR. TULLY: I'm familiar with that.
MR. JACKSON: As the supervising investigator -- by the way, you were familiar with the fact that the witness, the eyewitness, placed that Ford Edge -- I'm sorry. Let's see if I can start that over. The eyewitness indicated that the Ford Edge was placed there sometime between 2:30 in the morning and 3:30 in the morning, correct?
MR. TULLY: I'm familiar with that.
MR. JACKSON: All right. As the supervising investigator, did you do anything to investigate the circumstances of that Ford Edge being placed in front of 34 Fairview sometime between 2:30 and 3:30 in the morning?
MR. TULLY: Yes.
MR. JACKSON: What did you do?
MR. TULLY: Well, we determined the veracity of that statement. We wanted to make sure that the person who gave it is consistent and accurate and had a good vantage point of it. I have concerns about --
MR. JACKSON: Were you satisfied with that?
MR. TULLY: No.
MR. JACKSON: Why not?
MR. TULLY: Well, the person has given statements multiple times and it appears to have changed over those times. It also appears that the person observed these people from a distance. And also the identification of a Ford Edge seemed highly suggestive the way that I had read the account of it. If I had done that as a police officer, this Court would throw out that identification.
MR. JACKSON: So did you find out anybody in the Albert family, for instance, owned a Ford Edge?
MR. TULLY: I don't recall off the top of my head if somebody --
MR. JACKSON: Did you look at automobile registrations?
MR. TULLY: I did not.
MR. JACKSON: Did you task anybody else to look at automobile registration records?
MR. TULLY: I believe Trooper Proctor and Sergeant Bukhenik had investigated that.
MR. JACKSON: And do you have any idea with that investigation revealed?
MR. TULLY: I don't.
MR. JACKSON: Did the Alberts own a Ford Edge?
MR. TULLY: I don't know as I sit here.
MR. JACKSON: They did own a Ford Edge, didn't they?
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained.
BY MR. JACKSON:
MR. JACKSON: But nothing was done further that you're aware of to investigate the circumstances of that Ford Edge being seen and placed in front of 34 Fairview right where the body was found between 2:30 and 3:30 in the morning, right?
MR. TULLY: An investigation into the reliability of that witness.
MR. JACKSON: So you just decided -- and that investigation is, nah, I didn't believe them, right?
MR. TULLY: No.
MR. JACKSON: May I have a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: That's all I have, Your Honor.
JUDGE CANNONE: Okay. Mr. Lally, anything?
MR. LALLY: Just briefly.