Commonwealth v. Read — Trial ArchiveBrian Tully - Redirect/Recross
133 linesJUDGE CANNONE: Okay. Mr. Lally, anything?
MR. LALLY: Just briefly. So as far as that last line of questioning — as far as the witness and the Ford Edge — you mentioned that there were several different stories. Correct?
MR. TULLY: Yes. Several different versions of a statement.
MR. LALLY: Yes. And what were those different versions?
MR. TULLY: The first was that this person saw a Ford Edge in front of 34 Fairview. The next one that I can recall is that the person stated that they were not on Fairview but on Cedarcrest, some distance away, looking at this vehicle — in a blizzard. The person also self-reported that he was color blind, and he was operating a larger motor vehicle. The third story was a concern about the time. The third story was: as he arrived, the Canton Police had the street blocked off at about 4:00 a.m., and he places this Ford Edge outside the residence at a time before that. So we know through our investigation that the Canton Police didn't arrive till shortly after 6:00 a.m. — so the witness's times are off as well.
MR. LALLY: As far as what you termed a "highly suggestive ID" with the Ford Edge — can you explain what you mean by that?
MR. TULLY: As I read the report, the investigator had asked the person a question. They stated that there was a vehicle in front of 34 Fairview Road. The witness was then brought outside, and the investigator allegedly pointed to a motor vehicle that was in a parking lot and said, "Is that it?" — and the witness said, "Yes, that's it." And so it's suggestive in the fact that it would be a single photo identification, which — you know, as a police officer — I would not give somebody one thing and be suggestive, "Is this it?" — because, as the courts have ruled, that's highly suggestive, and the person is more likely to adopt that description of whatever they're describing, as opposed to if you use other methods.
MR. LALLY: Now, when you were being asked on cross-examination about certain distances from the house at 34 Fairview to the area where you had recovered items, you were repeatedly asked about a distance of 30 feet. Correct?
MR. TULLY: I did.
MR. LALLY: From the items that were recovered in the area described to you as where Mr. O'Keefe's body was located, shortly after 6:00 a.m. — is that 30 feet from the house?
MR. TULLY: No.
MR. LALLY: Where were the items?
MR. TULLY: The items were a little further, on the edge of the property — so it'd be closer to 40 or 50 feet.
MR. LALLY: And as far as where Mr. O'Keefe was located — with reference to the curb, with reference to the street — how close was that?
MR. TULLY: From the curb — reports indicated it was about 10 feet from the curb.
MR. LALLY: And so the evidence was a lot closer to the roadway — a lot closer to ...the curb than it was to the house. Correct?
PARENTHETICAL: [sidebar — approximately 2 minutes]
JUDGE CANNONE: You are muted.
PARENTHETICAL: [pause]
JUDGE CANNONE: You are unmuted now.
MR. TULLY: Correct.
MR. LALLY: As far as what, if anything, did you find significant between the location of the evidence in relation to Mr. O'Keefe — in relation to the roadway versus in relation to the house?
MR. TULLY: The pieces of evidence were physically on the roadway, on the pavement or curb.
MR. LALLY: Just one question as it applies to the sally port video from the Canton Police Department. Are you aware of how those videos were recorded — as far as when they stopped, when they started?
MR. TULLY: Not off the top of my head. No. But the ones we have in possession — no.
MR. LALLY: As far as — I'm sorry, let me ask a question a little more succinctly. But ...with reference to — are you familiar at all with the camera system at the Canton Police station?
MR. TULLY: Vaguely. Yes.
MR. LALLY: Do you know whether or not it's motion-activated?
MR. TULLY: The Canton IT director stated that it was mo— SOMEONE: Objection. Sustained.
MR. LALLY: Let me ask — are you aware that the cameras are motion-activated? SOMEONE: Objection as to form.
JUDGE CANNONE: What, if anything, are you aware as to how the camera— I'm going to allow it. You may approach.
MR. LALLY: ...time — was it sort of one long consistent recording, or did it jump?
MR. TULLY: It jumped.
MR. LALLY: And based on that, what, if any, conclusions did you draw as to how that video was recorded?
MR. TULLY: It appeared to be motion-activated. As these jumps occurred, it appeared to be triggered by motion.
MR. LALLY: Now, with reference to the items that were recovered on January 29th — during the team search that you were present for — in addition to your police report, how, if at all, were they memorialized? On the exterior of the paper bags that they were contained in — and when was that done? Before or after February 10th, when your report was written? SOMEONE: Objection. When was the ...memorialization on the evidence bags done in relation to when you wrote the report?
JUDGE CANNONE: I'll allow it.
MR. TULLY: The difference would be — the notes on the outside of the bag happened at the time of collection, and then I wrote my report 11 days later.
MR. LALLY: So as far as your memory, as you sit here and testify today and yesterday — as far as the items you took out of the bag — are those the same items that you recovered, or that were recovered by the search team on January 29th?
MR. TULLY: Yes.
MR. LALLY: Now, the information from the call detail records that Mr. Jackson presented to you — there were essentially two little columns. Correct?
MR. TULLY: Two rows.
MR. LALLY: Rows — excuse me. And was that sort of the entirety of what you reviewed as far as the call detail records in relation to generating the slides that you showed to the jury?
MR. TULLY: No.
MR. LALLY: And I'm sorry — may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: May I see the exhibits? I'm sorry — these are not marked. Which one — whatever the last one was in Mr. Jackson's —
JUDGE CANNONE: Yes. Thank you.
MR. LALLY: May I approach the witness?
JUDGE CANNONE: Yes.
MR. LALLY: Now, what's been marked as Exhibit 5 — with reference to what Mr. Jackson had given you earlier, Lieutenant — from what's depicted on there, what, if any, issue do you have with the depiction on that exhibit?
MR. TULLY: Like I mentioned, it's difficult to get a good sense of what we're looking at, because the roads don't really appear on here. If they do, they're light and faint. There are large black lines that kind of intersect with a lot of them, along with the words of them. At the bottom it looks like it's written "map scale" next to a scale, but I can't attest to the veracity of that. Those would be a couple of problems I see.
MR. LALLY: Now, with reference to the slides that you created with the different time frames — not just the one single time frame — again, the times that you observed, or the location of the — the cell phone of the defendant that you observed from the call detail records — were they consistent with other ...pieces of evidence that you had, whether it be video and/or witness statements?
MR. TULLY: Yes.
MR. LALLY: And that would be consistent with the location of the defendant?
MR. TULLY: Correct. Yes.
MR. LALLY: Now, you were asked some questions about speed and distance of travel, and you indicated that you did not agree with the premise of Mr. Jackson's question. Correct?
MR. TULLY: Yes.
MR. LALLY: Can you explain to the jury what it was about the premise — or what it was — that you did not agree with?
MR. TULLY: While I agree it would be impossible for the phone to travel at that distance, I disagree with the premise that the procedure that was being captured here — and the distances — may not be at the same time. So there may be — the distance could have preceded the procedure, and the end distance could have been after the procedure. There are other ways to capture that information. Again, all I'm doing — and I'm at the mercy of the records — is illustrating them. I then take the next step in order to corroborate that information, ideally through video and other location-based information.
MR. LALLY: Now, in relation to speed — is that something that you've done in other cases with call detail records?
MR. TULLY: Yes.
MR. LALLY: And you mentioned that you weren't able to do it here, or didn't do it here — can you explain why not?
MR. TULLY: By "speed," do you mean route of travel? Or — so, if I have a more robust set of records — so, again, we're at the mercy of Verizon here. We only got a limited number of records from the ranging data. With other cases, if the phone is much more "chatty" with the antenna — if there's more lines of communication — I've seen lines of communication as frequent as every couple of seconds, or less than a couple of seconds. As I map those out, I can make more of a determination of maybe the route of travel of the cell phone. So as I put the first arc, I'll then place the second arc on a map and say to myself, "How could a handset get from the first arc to the second arc?" — and I'll ...have a number of possibilities. I will then lay out the third arc.
MR. TULLY: Okay, how could a phone get from the second arc to the third arc? And repeat that process, narrowing down the different possibilities. And oftentimes I'm able to determine the route of travel, send investigators down to that route, and we find corroborating information.
MR. LALLY: And again, why was it that you weren't able to do that with this information that you received from Verizon in this case?
MR. TULLY: We received a limited number of entries on this record.
MR. LALLY: And what, if any, relationship does that have to sort of the area — or the geographic location — as far as the town of Canton is concerned, and the number of
MR. TULLY: ...antennas? Well, as respective to the number of records, it's a larger area the cell phone could potentially be.
MR. LALLY: So in no way — in your testimony, in your slides, or anything else — are you suggesting that the device, or the handset, or the defendant's cell phone was traveling at that speed? Correct?
MR. TULLY: Correct.
MR. LALLY: So could you explain to the jury again exactly what those arcs mean, and what you are explaining with reference to those records?
MR. TULLY: They have a start distance and an end distance. I take those distances, place them on a map, starting where the antenna is. Also in that record, it states where it is. Draw a distance from that antenna, draw an arc at distance, with the radius being the distance that's on the record, and have an arc that is in excess of 120°.
MR. LALLY: You were also asked some questions about whether causing some sort of interference or something in relation to the recording — with regard to antennas, or which antenna a device might connect to. You indicated that was not your experience with these types of records. Can you respond upon that?
MR. TULLY: The greatest predictor of what antenna a cell phone is going to use is distance, because, like I said, the further the handset is away from an antenna, the more degraded the signal is going to get. So that's the best predictor. But, like I mentioned earlier, there are things that can disrupt a cell phone signal, which would cause a handset not to connect to the closest antenna. And that can be physical obstruction, precipitation, elevation, an antenna goes down for whatever period or for whatever reason, causing it to connect to another antenna that is technically further away.
MR. LALLY: And so, from your review of the call detail records, and from your mapping from those various time frames contained within the slides — what, if anything, can you say from that material, in reference to the other evidence collected, as to the location of the defendant's cell phone during those
MR. TULLY: Relevant times — well, relevant — I'll zero in at the 5:18. I would suggest that the defendant, her vehicle, and the cell phone were on Washington Street outside of Temple Beth Abraham at that time. That's one thing that I would be comfortable suggesting.
MR. LALLY: May I have a moment?
JUDGE CANNONE: Yes.
MR. LALLY: Thanks, sir. Nothing further.
JUDGE CANNONE: Mr. Jackson?
MR. JACKSON: Very briefly, uh, Lieutenant. Do you still have — I think it's 578? 578?
MR. TULLY: I have 577. Is 578 not marked yet?
MR. JACKSON: What — where's the RTT record? Is that 577?
MR. TULLY: I have RTT records that are not marked in front of me.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: Objection.
JUDGE CANNONE: Right. So let's mark it for identification. Just have the witness identify it.
MR. JACKSON: Understood.
COURT CLERK: Sorry. Then that was letters Triple K.
MR. JACKSON: Thank you. You're looking at Triple K. Correct?
MR. TULLY: Yes, sir.
MR. JACKSON: All right. When you created the arcs on your map, you also put on the map 5:18 a.m. Correct?
MR. TULLY: Yes.
MR. JACKSON: Where'd you get that number from?
MR. TULLY: The procedure start and end time.
MR. JACKSON: So you did use the procedure start time and end time. Correct?
MR. TULLY: Uh — to denote the time. But — yeah — to denote the time on the slide? Yes. The event? Correct. Yes.
MR. JACKSON: All right, so the 5:18 and 19 seconds — and then — I don't have it in front of me — but .154? I think. Is that right?
MR. TULLY: Yes.
MR. JACKSON: That was the time that you used to establish the device was on the first arc. Correct?
MR. TULLY: No. I didn't use it to establish the arc. I used the distance to establish the arc, and I placed the time on the slide.
MR. JACKSON: What time? — 5:18? The time that Verizon gave you as the start time? Correct?
MR. TULLY: Yes. They're both 5:18. So there's a start time and a start distance from the tower.
MR. JACKSON: In other words, the event took place at this distance, at this time, starting. Correct?
MR. TULLY: No. You're using the wrong words. It says "first distance."
MR. JACKSON: I'm not using wrong words.
MR. TULLY: Yes, sir.
MR. JACKSON: You said "start distance." It's "first distance." Okay, fine. Okay. Pick — pick the words: "first distance," "start time," and "first distance." Correct?
MR. TULLY: Yes. Those are on the record.
MR. JACKSON: Right. Then Verizon gives you an end time. Correct?
MR. TULLY: Yes.
MR. JACKSON: And last distance. Right? And you created your arc based on the start time and first distance versus the end time and last distance. Correct?
MR. TULLY: No. I — the time wasn't associated —
MR. JACKSON: You're saying no because that would require the device to travel at 135,000 miles an hour.
MR. LALLY: Objection. If the witness could please answer the question.
JUDGE CANNONE: Let him finish.
MR. JACKSON: Sure.
JUDGE CANNONE: And then the objection to that is sustained. You can ask it differently. Go ahead.
MR. TULLY: The times were not part of the depiction of the range. Well, I will suggest to you that it is probably unbelievable that those are actually start and end times. What I'm saying is we don't know for certainty that that is the exact time — the first distance and the last distance. I'd have to look back at the records. But I also say that we have corroborating evidence to say that that is accurate.
MR. JACKSON: So you'd have to look back at the records. Correct?
MR. TULLY: Yes.
MR. JACKSON: That is your record you looked at. Is it —
MR. TULLY: The record's key —
MR. JACKSON: And where's the record's key?
MR. TULLY: They were provided by Verizon.
MR. JACKSON: Where are they, sir?
MR. TULLY: I don't have them in front of me.
MR. JACKSON: Right. That's all.
JUDGE CANNONE: Okay.
MR. LALLY: May we approach? Just briefly.
JUDGE CANNONE: Okay. Don't leave yet.