Commonwealth v. Read — Trial ArchiveBrian Tully — Redirect/Recross
218 linesREDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: 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.
MR. LALLY: Or several different versions of the statement?
MR. TULLY: Yes.
MR. LALLY: 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 ina 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, 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 until shortly after 6:00 a.m. So the witness's times are off, as well.
MR. LALLY: As far as what you termed as a highly suggestive I.D. with the Ford Edge, can you explain what you mean by that?
MR. TULLY: As I read the report, the investigator had asked a person first 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 ina 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 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 have recovered items, repeatedly you have been asked about a distance of 30 feet, correct?
MR. TULLY: I did.
MR. LALLY: From the items that were recovered and the area that was described to as to where Mr. O'Keefe's body was located shortly after 6:00 a.m., was that 30 feet from the house?
MR. TULLY: No. Where the items were were a little further on the edge of the property. So it would 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 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 roadway, a lot closer to the curb than it was to the house, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to form.
BY MR. LALLY:
MR. LALLY: As far as the -- what, if anything, did you find significant between the location of the evidence in relation -- and Mr. O'Keefe in relation to the roadway versus in relation to the house?
MR. TULLY: The piece of evidence were physically on the roadway, on the pavement before the curb.
MR. LALLY: Just one question as it applies to the sally port video from the Canton Police Department. Are you aware of sort of how those videos were recorded as far as when they stopped and when they started?
MR. TULLY: Not off the top of my head, no. The ones we have in possession, no.
MR. LALLY: And, as far as -- I'm sorry. Let me ask the question probably 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: As far as do you know whether it's motion activated?
MR. TULLY: The Canton IT director stated that it was --
MR. JACKSON: Objection.
JUDGE CANNONE: So the objection is sustained.
BY MR. LALLY:
MR. LALLY: Well, are you aware that the cameras are motion activated?
MR. JACKSON: Objection.
JUDGE CANNONE: As to form, it's sustained.
BY MR. LALLY:
MR. LALLY: What, if anything, are you aware of as to how the cameras record?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it.
MR. JACKSON: May we approach?
JUDGE CANNONE: Okay.
(Whereupon, there is a sidebar conference as follows:)
MR. JACKSON: This is hearsay.
JUDGE CANNONE: Yes, but it goes to the Bowden stuff, right?
MR. JACKSON: That doesn't mean that hearsay gets to come in. I was looking at this yesterday because the Court mentioned it yesterday, given the fact that there was a Bowden defense, that they get to establish what they did or didn't do in terms of furthering their investigation. I've been very reserved in terms of my objections concerning, you know, why does --
JUDGE CANNONE: I'm going to stop you. If he knows other than by the IT director told him, he can say it, but not if that's the only way he knows.
MR. JACKSON: I think he would only know that if someone told him. That's all.
JUDGE CANNONE: Except he did say he looked at them, not completely but he did review them. So if you can say it other than that, it's coming in --
MR. JACKSON: Okay.
JUDGE CANNONE: -- for the reasons about Bowden.
MR. JACKSON: Understood.
(Whereupon, the sidebar conference concluded.)
BY MR. LALLY:
MR. LALLY: Now, Lieutenant, when it came to the sally port video, at some point you did review them to some extent?
MR. TULLY: Yes.
MR. LALLY: And, over the course of your review, what, if anything, did you note in reference to the time? Was it sort of one long consistent 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 records?
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 SERT team search that you were present for, in addition to your police report, how, if at all, were they memorialized?
MR. TULLY: On the exterior of the paper bags that they were contained in.
MR. LALLY: And when was that done? Before or after February 10th when your report was written?
MR. JACKSON: Objection.
JUDGE CANNONE: Ask it differently, Mr. Lally.
BY MR. LALLY:
MR. LALLY: When was the memorialization on the evidence bags done in relation to when you wrote your report?
MR. JACKSON: Objection.
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.
BY MR. LALLY:
MR. LALLY: So as far as your memory as you sit here and testify today and yesterday as far as the items that you took out of the bag, are those the same items that you recovered or were recovered by the SERT team on January 29th?
MR. TULLY: Yes.
MR. LALLY: Now, the information from the call detail records that Mr. Jackson presented to you, there was essentially two little columns, correct?
MR. TULLY: Two rows, yes.
MR. LALLY: Two 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 were depicted to the jury?
MR. TULLY: No.
MR. LALLY: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: May I see the exhibits? I'm sorry. Whatever the last one was that Mr. Jackson entered. May I approach the witness, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: I'm showing you now what's been marked as Exhibit 577 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 are looking at because the roads don't really appear on here. If they do, they are light and faint. The large black line kind of intersects with a lot of them, with the words in 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 zones, not just the one single time frame, again, the times that you observed or the location of the handset or the cell phone of the defendant's 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, correct?
MR. TULLY: 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: So while I agree it would be impossible for the phone to travel at that distance, I disagree with the premise that the procedure that would be captured here and the distances may not be at the same time. So there may be a distance that 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 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 couldn't do it here. Can you explain why not?
MR. TULLY: By "speed," do you mean route of travel or --
MR. LALLY: Yes.
MR. TULLY: So if I have a more robust set of records -- so again, we are at the mercy of Verizon here. We only get limited numbers from the ranging date. With other cases if the phone is much more chatty with the antenna, there's more lines of communication. I've seen lines of communication as frequent as every couple seconds or less than a couple 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. 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 in this record.
MR. LALLY: And what, if any, relationship does that have to sort of the area or the geographical location as far as town of Canton is concerned and the number of antennas they have?
MR. TULLY: Well, as respective to the number of records, it's a larger area that the cell phone could potentially be.
MR. LALLY: So in no way in your testimony or 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?
MR. TULLY: Those records 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 it is. I draw a distance from that antenna, draw an arc at that distance with the radius being -- with the distance that's on the record and have an arc that's in excess of 120 degrees.
MR. LALLY: You were also asked some questions about whether causing some sort of interference 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 expound upon that?
MR. TULLY: The greatest predictor of what antenna a cell phone is going to use is distance because, like I said, the farther the handset is away from an antenna, the more degraded the signal is going to get. So that is 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; if 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 view of the call detail records and from your mapping from those various time frames contained within the slides that were presented to the jury, 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 relevant time periods?
MR. TULLY: Well, relevant, I'll zero in at 5:18. I would suggest that the defendant, her vehicle and the cell phone were on Washington Street, outside of the Temple Beth Abraham at that time. That is one thing that I would be comfortable suggesting.
MR. LALLY: May I have a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Thank you, sir. Nothing further, Your Honor.
JUDGE CANNONE: Mr. Jackson?
MR. JACKSON: Very briefly.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Lieutenant Tully, do you still have I think it's 578, Exhibit 578, in front of you?
MR. TULLY: I have 577.
MR. JACKSON: Here it is.
COURT REPORTER: Exhibit 578 is not marked yet.
MR. JACKSON: Oh, it's not? Where is 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. JACKSON: Move to admit.
JUDGE CANNONE: Mr. Lally?
MR. LALLY: Objection.
JUDGE CANNONE: All right. So let's mark it for identification, and then I'll take a look at it.
(Whereupon, RTT record sheet was entered and marked Exhibit "KKK" for Identification.)
COURT REPORTER: That will be "KKK" for Identification.
JUDGE CANNONE: Just have the witness identify it.
MR. JACKSON: I understand. I'm sorry. What was the letters?
COURT REPORTER: Triple "K."
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: You are looking at triple kilo, 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 did you get that number?
MR. TULLY: From the procedure start and end time.
MR. JACKSON: So you did use the procedure start time and end time, correct?
MR. TULLY: To denote the time but not -- yes, to denote the time on the slide. Yes.
MR. JACKSON: The time of the event, correct?
MR. TULLY: Yes.
MR. JACKSON: All right. So the 5:18:019 -- I'm sorry -- 5:18 and 19 seconds and then, and 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 that 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, Lieutenant Tully?
MR. TULLY: 5:18.
MR. JACKSON: The time that Verizon gave you as the start time, correct?
MR. TULLY: Yes. They are both 5:18.
MR. JACKSON: So there's a start time and a start distance from the tower. 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 the wrong words.
MR. TULLY: Yes, sir. You said "start distance." It's "first distance."
MR. JACKSON: Okay. Fine. Pick the words. First distance. Start time and first distance, correct?
MR. TULLY: Yes.
MR. JACKSON: And then --
MR. TULLY: Those are on the record.
MR. JACKSON: Right. Then Verizon gives you an end time, correct?
MR. TULLY: Yes.
MR. JACKSON: And the last distance, correct?
MR. TULLY: Yes.
MR. JACKSON: And you created your arc based on the start time and the first distance versus the end time and last distance, correct?
MR. TULLY: No. The time --
MR. JACKSON: And the reason you're saying no is because that would require the device to travel at 135,000 miles an hour, correct?
MR. LALLY: Objection. If the witness could please answer the question?
JUDGE CANNONE: Let him finish.
MR. JACKSON: Okay. Sure.
JUDGE CANNONE: And then the objection to that is sustained. You can ask it differently.
BY MR. JACKSON:
MR. JACKSON: Go ahead.
MR. TULLY: The times were not part of the depiction of the range. I will suggest to you that it is probably unbelievable that those are actually start and end times. What I am saying is we don't know for certainty that that is the exact time of the first distance and the last distance. I'd have to look back at the records. But I'd 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. That's what you looked at, isn't it?
MR. TULLY: No. The records key.
MR. JACKSON: And where is the records 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.
(Whereupon, there was a sidebar conference as follows:)
MR. LALLY: Just very quick, Your Honor. There were the certified weather records that I had put in. I think --
JUDGE CANNONE: Yes. You made your objection to this yesterday. It's coming into evidence.
MR. JACKSON: My objection is that is not a record that I believe should come into evidence under Massachusetts law. It's required to be sent directly to the court. They haven't followed the proper procedure.
JUDGE CANNONE: I am going to let this in. So your objection is noted.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Madam Court Reporter, we'll have these as the next two exhibits.
COURT REPORTER: That will be Exhibit 578 and 579.
(Whereupon, weather records were entered and marked Exhibit No. 578 (previously "JJJ") in Evidence.)
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: All right. What's the objection, Mr. Lally?
MR. LALLY: My issue is it's portions of the records. If he wants to put it in its entirety of the records, go ahead. But just putting in one row from the call detail records is not an accurate depiction of what it is.
JUDGE CANNONE: What do you say, Mr. Jackson?
MR. JACKSON: It's absolutely an accurate depiction of what it is. This is a record from 5/18. I'm not worried about what happened at 12:30 p.m. or 3:00 o'clock. I'm worried about what happened at 5:18. This is what he based his knowledge.
JUDGE CANNONE: He's already testified to every Single thing that's on this, correct?
MR. JACKSON: Correct.
JUDGE CANNONE: Okay. This is coming into evidence.
(Whereupon, the sidebar conference is paused.)
JUDGE CANNONE: So, Madam Court Reporter that is the next exhibit.
COURT REPORTER: That will be Exhibit 579.
(Whereupon, RTT record sheet (previously "KKK" for Identification) was entered and marked Exhibit No. 579 in Evidence.)
(Whereupon, the sidebar conference continued.)
JUDGE CANNONE: Is there anything else?
MR. LALLY: No.
JUDGE CANNONE: Okay. Did you need that? Is that why you wanted it now or was it just sort of housekeeping?
MR. LALLY: No. It was just sort of hanging out there and I didn't want to leave it before the witness got off the stand.
JUDGE CANNONE: Yes. Okay. So we will continue with the next witness.
MR. LALLY: Yes, Your Honor.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: All right. Lieutenant Tully, you are all set, sir. If I may have that exhibit. Thank you very much.
MR. TULLY: Your Honor, I believe that is defense counsel's.
JUDGE CANNONE: All right.
(Whereupon, the witness is excused.)