Commonwealth v. Read — Trial ArchiveJoseph Paul — Voir Dire
373 linesJUDGE CANNONE: Trooper, we are going to have a voir dire of you. So Mr. Lally is going to ask you some questions. Mr. Jackson is going to ask you some questions. You’ll be shown a video. Okay?
JUDGE CANNONE: All right, Mr. Lally.
VOIR DIRE BY MR. LALLY:
MR. LALLY: Now, Trooper Paul, as I was asking you before with respect to, have you had occasion to see a Ring video from Mr. O’Keefe’s house at 1 Meadows Avenue depicting the defendant or the defendant’s vehicle backing out of a garage while snow was falling?
MR. LALLY: Now, in addition to that, as you’ve already testified to, you made observations of the defendant’s vehicle in the Canton Police Department garage on February 1, is that correct?
MR. LALLY: And Your Honor, with the Court’s permission, may we play the video at this time?
JUDGE CANNONE: Yes.
MR. JACKSON: Your Honor, to save time, I’ll stipulate to the video. We all know what --
JUDGE CANNONE: I want to see it for purposes of this voir dire.
MR. JACKSON: Understood.
JUDGE CANNONE: In fact, I’d like to see the version that the defendants have with the focusing on the tire.
MR. JACKSON: Understood.
JUDGE CANNONE: Both. Go ahead, Ms. Gilman, you show yours and then I’ll ask --
MR. LALLY: 153.
(Video plays.)
MR. LALLY: Ms. Gilman, if you could pause there for a moment.
(Video paused.)
MR. LALLY: Now, Trooper, from your observations from this video, at some point this vehicle either comes close or makes contact with Mr. O’Keefe’s vehicle; is that correct?
MR. LALLY: Now, in addition to your observations of this video and your observations of the defendant’s vehicle, at some point have you also seen photographs of Mr. O’Keefe’s vehicle?
MR. LALLY: And is your understanding that those photographs of Mr. O’Keefe’s vehicle were taken by State Police Crime Scene Services on February 3; is that correct?
MR. LALLY: Now, with reference to your observations in this vehicle, what I’m going to ask you is in regard to the Significance that you observe -- significance of the impact between the two vehicles, in respect to Mr. O’ Keefe’s vehicle, what, if anything, did you observe on his vehicle at that time?
MR. LALLY: Right now. I’m sorry.
MR. LALLY: And with respect to the contact between the defendant’s vehicle and the victim, Mr. O’Keefe’s vehicle, what if anything did you observe to occur with relation to the snow based on the significance of the impact between the two?
MR. LALLY: And Ms. Gilman, if you could press play at this time.
(Video plays.)
JUDGE CANNONE: Can I see the other video, please?
MR. LALLY: Sure, whatever the Court would like.
(Video plays.)
JUDGE CANNONE: Thank you. Could you turn the lights on, please?
MR. LALLY: Your Honor, if I could, there’s just two photographs that I’d like to just for these purposes --
JUDGE CANNONE: Sure.
MR. LALLY: Ms. Gilman, if I could have what’s now been marked as Exhibit 549?
JUDGE CANNONE: Before you do that, what is the exhibit we just saw through your IT person?
MR. JACKSON: Your Honor, it’s the same exhibit. It has not been enhanced in any way. It was just magnified for purposes of this, of showing it. In other words, the magnification is not embedded in the video. It’s the same video.
JUDGE CANNONE: Okay.
MR. JACKSON: We just magnified it.
JUDGE CANNONE: Okay. All right. Go ahead, Mr. Lally.
MR. LALLY: And, Trooper, do you recognize what’s up on the screen now?
MR. LALLY: And what are we looking at and which area of the vehicle are we looking at here?
MR. LALLY: The driver’s side; is that correct?
MR. LALLY: And what, if any, relationship does this portion of the vehicle we’re looking at here have in relation to the video that we just watched?
JUDGE CANNONE: I’m sorry. What was the answer? I didn’t hear you.
MR. PAUL: I’m sorry. A It was faced kind of the same way. You see the back left rear corner of the vehicle as you do in this picture here.
MR. LALLY: And, Ms. Gilman, if I could have what’s now been marked as Exhibit 559?
MR. LALLY: And, sir, is this the same driver’s side rear of Mr. O’Keefe’s vehicle?
MR. LALLY: Now, as far as your observations of these photographs, what if any damage did you observe to Mr. O’Keefe’s vehicle in either the last exhibit or this exhibit itself?
MR. LALLY: Now, as far as the impact - let me ask, as far as the damage that you observed to the taillight area of the defendant’s vehicle, what if any opinion do you have as to the amount of force necessary in order to cause that damage?
MR. JACKSON: Objection.
JUDGE CANNONE: You need a foundation on this.
MR. LALLY: So, Trooper, over the course of your -- I’m sorry. How many crashes have you investigated over your time with the State Police CARS Unit?
MR. LALLY: And I know I had asked you before about pedestrian crashes. Fair to say most of the remainder if not all of the remainder involves vehicles colliding with other vehicles?
MR. LALLY: Now, with respect to that experience in relation to vehicle crashes, what if any training or knowledge do you have in regard to sort of physical forces of vehicles in a collision sequence and what kind of damage you would anticipate?
MR. PAUL: So, obviously the higher the speed the more damage; the lower the speed the less damage.
MR. LALLY: And what if any -- from the observation that you made in that video and the observations that you made of the defendant’s vehicle, what you observed in the video, is that consistent with the damage that you observed to the defendant’s vehicle?
MR. JACKSON: Objection.
JUDGE CANNONE: So I’m going to allow this for voir dire. I just need to hear this information.
MR. JACKSON: Understood, Your Honor. Thank you.
MR. LALLY: And why not?
MR. PAUL: One thing, the collision - the taillight is - I want to say 42 to 50 inches off the ground. So that vehicle would have had to have damage 42 to 50 inches off the ground, because they would have had to contact each other in the same distance from the ground, and there’s no damage to that vehicle. So if a taillight breaks, it should leave some sort of scratching, maybe a dent, something on —- some sort of damage to that vehicle should have occurred.
MR. LALLY: And with respect to - I think you just answered it. So as far as Mr. O’Keefe’s vehicle, what kind of damage would you expect from an impact significant enough to break the plastic on the taillight of the defendant’s vehicle?
MR. JACKSON: Objection.
JUDGE CANNONE: For purposes of the voir dire, I need to hear all of this, Mr. Jackson. Go ahead. A A higher speed than what we probably saw in there. If it’s not, maybe it would crack a taillight or something like that, but it wouldn’t -- I mean, the damage is different. And also, you know, there -- you have a bumper that’s also in the way, too.
MR. LALLY: And to that point, Trooper, when it comes to a bumper, from a functional standpoint, what is a bumper, and what does it do with respect to a vehicle in a collision sequence?
MR. PAUL: The bumper is, you know, basically meant as another cushion to absorb the impact to another vehicle, from one vehicle to another vehicle. It kind of sticks out to kind of also preserve whatever taillights and everything else on top of it.
MR. LALLY: And so in order -- from your experience as far as responding and investigating collisions, specifically collisions between motor vehicles, the speed that you observed the defendant’s vehicle traveling in that video, what if any relationship does that have specifically as -- also as to the bumper as to the damage that you observed to the defendant’s vehicle?
MR. PAUL: So, if you look at the defendant’s vehicle, there is a scratch mark that is along the left side of - it starts from her bumper around the rear. That could be consistently with his - hitting his bumper. They would be around the same height level. They also has - he has a, like, little ridge there on his bumper, so that bumper could have been hit, that little ridge, and also the bumper in itself in here is a different material. Hers is a little lighter, like a glossy colored paint. His is more a duller flat finish. So it might have some -- why it would show up on her bumper more than it would show up on his bumper.
MR. LALLY: And finally, sir, in your opinion, the damage to the defendant’s taillight, is that something that could have occurred or could have been caused by the crash or the contact of the vehicles that you observed in that video?
MR. JACKSON: Objection.
JUDGE CANNONE: So again, this is voir dire, Mr. Jackson. I’m going to hear it.
MR. LALLY: And again, sir, why not?
MR. PAUL: For one thing, the bumpers, you’d have to go push through the bumpers in order to hit the taillight against the other vehicle, and there’s no damage to that -- that significant damage to a bumper in order to push that into the car.
MR. LALLY: And again, there was no snow on the vehicle, by that, I mean Mr. O’Keefe’s vehicle, that even came off of the vehicle that you observed during the course of that contact between the two vehicles?
MR. LALLY: I have nothing further, Your Honor.
JUDGE CANNONE: All right. Mr. Jackson?
VOIR DIRE BY MR. JACKSON:
MR. JACKSON: Did you ever put the two cars together?
MR. JACKSON: No, you didn’t, did you? You didn’t - you never tested whether or not the SUV would match up with the Traverse, did you?
MR. JACKSON: You just said, oh, look, one of them has matte finish, one of them has glossy finish, so it couldn’t have happened, right?
MR. JACKSON: Okay, let me try it again.
MR. JACKSON: Yeah --
MR. JACKSON: Yeah, we were talking about the taillight --
JUDGE CANNONE: So one person at a time. You’re both talking at once.
MR. JACKSON: You started talking about the bumpers.
MR. JACKSON: You said, "Well, one has a matte finish, and one has a glossy finish," right?
MR. JACKSON: And you said, "Well, you’d expect one of them to like slide off of each other and they could have done this and they could have done that," right?
MR. JACKSON: You were suggesting that the two cars wouldn’t match up, such that the taillight could make contact with any part of the Traverse. That’s what you were suggesting?
MR. JACKSON: But you didn’t test whether or not the lens, the right rear lens, on the SUV could match up to any part of the Traverse, right, and make contact, physical contact, with it; right?
MR. JACKSON: Yes or no, Trooper. Did you --
JUDGE CANNONE: This is a voir dire. I need the information. A You’re asking me a question.
MR. JACKSON: Yeah, and it was a yes or no question, Trooper.
JUDGE CANNONE: Mr. Jackson, just for -- there’s no jury here.
MR. JACKSON: I realize that.
JUDGE CANNONE: This is for purposes of what I have to rule on. The more information I have, the better off I am in being able to rule on it.
MR. JACKSON: All right. Let me take a breath.
JUDGE CANNONE: And this is you trying to keep the evidence out, so you want to give me the information.
MR. JACKSON: Understood.
MR. JACKSON: Did you or did you not ever do a test where you backed the Lexus up against the Traverse?
MR. JACKSON: Did you or did you not ever do a test where you put the two cars together and measured them?
MR. JACKSON: Did you ever measure the taillight of the SUV, the black SUV, against the - any area on that Traverse?
MR. JACKSON: Did you ever do any force multiplier tests to determine the forces necessary to crack the SUV’s convex taillight?
MR. JACKSON: Did you ever do any testing to determine whether or not a plastic taillight - under how much pressure a plastic taillight would need to be subjected before it would crack?
MR. JACKSON: Did you ever do any testing to determine whether or not if a taillight, if a plastic taillight came into contact with a metallic portion of another SUV, whether it would leave any mark?
MR. PAUL: Have I done any testing? I’ve seen crashes where headlights have struck other vehicles.
MR. JACKSON: Okay.
MR. JACKSON: Fair enough. But those —- I’m guessing that those crashes are probably different speeds and higher speeds; not this, right?
MR. JACKSON: So, have you ever had a crash where you investigated - the Massachusetts State Police have been brought in to investigate a crash where the car was going in reverse at about a half a mile an hour?
MR. JACKSON: Whatever that was (indicating).
MR. JACKSON: Well, you’re the reconstructionist. Give me an estimate of how fast you think that SUV was going at the point of contact with the Traverse.
MR. JACKSON: Okay, fair enough. Have you ever been called in to a crash, to investigate a crash, where the cars have collided at one mile an hour?
MR. JACKSON: That wasn’t my question. That wasn’t quite my question. A Okay.
MR. JACKSON: My question is, have you been called in to a crash involving two vehicles that have made contact at about a mile an hour?
MR. PAUL: I have seen testing for vehicles at low speeds. So you’re asking if I had been called to a crash. I go to fatality crashes. But I have seen testing for vehicles at low-speed impacts.
MR. JACKSON: Okay. How low a speed?
MR. JACKSON: So like this (indicating)?
MR. JACKSON: Did you see any damage?
MR. JACKSON: Right. And what circumstance -- minimal damage, like, I don’t know, like a cracked taillight?
MR. JACKSON: Or you might see nothing, right?
MR. JACKSON: You’ve certainly seen circumstances in which two cars come in contact and there’s absolutely no - there’s no physical damage to either car, nothing observable, right?
MR. JACKSON: Sure.
MR. JACKSON: Or just --
COURT REPORTER: Please.
MR. JACKSON: Or just in common-sense just every-day life, where one car backs into another car at the Jiffy Lube, makes contact, drives away, and there’s no damage?
MR. JACKSON: Like, what’s the something?
MR. JACKSON: Right.
MR. JACKSON: So if you put a piece of metal in that scenario, if you put a metal, steel, right?
MR. JACKSON: Against a piece of plastic, which one do you think is going to give way first?
MR. JACKSON: Which one would give way first?
MR. JACKSON: I’m talking --
MR. PAUL: And when we were talking - you’re just saying plastic and metal. You’re giving a pretty general broad plastic and metal --
MR. JACKSON: Trooper Paul --
MR. JACKSON: Trooper Paul, you admit - you’ve got to agree with me that there are circumstances in which low-speed, very, very low-speed contact, between two cars, can certainly leave damage on one and not damage on the other, damage on both, or no damage on either one?
MR. PAUL: Yes. I actually just said that in that situation where the scratch is on the side of her car, had a scratch mark, and his doesn’t appear to have anything.
MR. JACKSON: Right. And you said on questioning by Mr. Lally that certain circumstances like this could lead to a lens material, right, plastic material, cracking? Right?
MR. JACKSON: Just a few minutes ago, Mr. Lally asked you --
COURT REPORTER: Hold on.
MR. JACKSON: Mr. Lally asked you a question a few minutes ago, and you indicated that something might show up on a bumper - I’m sorry, something might like a taillight might actually crack, correct, on low-speed impact?
MR. JACKSON: Correct.
MR. JACKSON: Okay. Now, Mr. Lally also said you saw this video where the cars come close to or make contact, right? That’s how he worded the question? Do you remember that?
MR. JACKSON: Which one is it? Did it come close, or did it make contact?
MR. PAUL: I said it might. I don’t know what - if that scratch from the side is, is something that’s consistent with the height of the bumper. Like I said, I didn’t measure them side-by-side, but you can clearly see there’s a scratch on the side, and it’s something that looks like that would come back. So I thought, look at the bumper, and I see the bumper, and it has that little divot, and I look at the side of her car with that scratch mark that kind of lines a little bit of why - that could be where that was from.
MR. JACKSON: I thought you said there was no damage on that car, on the Traverse?
MR. PAUL: There is no damage. And that’s why I went to the why there is two different paint materials there, that why one could have showed up on her car because it’s the flat - the glossy paint on there, and it could have scratched on it. While you have something that’s a little more rougher texture with like a flat, you know, flat color on there that wouldn’t leave on there.
MR. JACKSON: So you just described a circumstance in which two cars come in contact, you don’t see any observable damage on one and you do on the other. That’s what you just described, right?
MR. JACKSON: Yeah. With regard to the video, let’s get back to the question that I asked, which was, in that video, did the SUV come close to or did it come in contact with the Traverse?
MR. PAUL: Again, I don’t know because I’m saying based off the damage that it’s something consistent with that, so most likely it did come in contact with the bumper to bumper, but I don’t know definitively because there is no damage to his care, but it’s something that could explain why there is a scratch mark alongside the right rear side of his car, or her car.
MR. JACKSON: Did you see the tire move, sir? Did you see the wheel on the Traverse move in that video?
MR. JACKSON: I beg your pardon? You didn’t see -
MR. PAUL: I didn’t see it move. If I did, I didn’t observe it moving. If it moved, it moved. I didn’t observe it moving.
MR. JACKSON: When was the first time --
MR. JACKSON: When was the first time you saw that video?
MR. JACKSON: Well, I don’t know what “a little while” means.
MR. JACKSON: Okay. So you saw that video a year ago. Did you put anything about that video in your report, which is wherever it is, right here. I’m looking at your entire CARS report.
MR. JACKSON: Did you put anything in this CARS report about watching that video?
MR. PAUL: No, because I watched the video like after court was done, and honestly I watched the first time on Court TV, so --
MR. JACKSON: So who -- on Court TV during this trial or ata prior hearing?
MR. JACKSON: When did you and Mr. Lally have a discussion about you testifying about this video?
MR. JACKSON: I’m sorry. I couldn’t understand you.
MR. JACKSON: What’s “a couple weeks ago”? Is it ten days ago?
MR. JACKSON: Okay. Where did you two meet?
MR. JACKSON: Was that at your request, or was that at Mr. Lally’s request?
MR. JACKSON: Right, well, those don’t just --
MR. JACKSON: You done?
MR. JACKSON: We’re talking over each other. I’m trying not to talk over you, Trooper.
MR. JACKSON: Let’s both try harder.
MR. JACKSON: Who set up the meeting?
MR. JACKSON: Yes, Trooper Paul.
MR. JACKSON: Who was at the meeting?
MR. JACKSON: Lieutenant Tully, you, Adam Lally, Laura McLaughlin? I’m guessing Ms. Gilman was not there?
MR. JACKSON: Did Mr. Lally show you this video at that meeting?
MR. JACKSON: Did he tell you that he intended to ask you some questions about this video at that meeting?
MR. JACKSON: Did he ask you whether or not you could render an opinion as to whether or not the impact that you saw or lack thereof, whatever the case may be, was consistent or inconsistent with damage to the taillight?
MR. JACKSON: Did you tell him that you would give him such opinion if called upon at trial?
MR. JACKSON: Did anybody take any notes?
MR. JACKSON: Were you talking notes?
MR. JACKSON: Where are those notes, Trooper Paul?
MR. PAUL: I think I just -- well, notes not on this specifically, but just, you know, make sure I had, you know, my -- everything checks and balances for what I wanted to talk about --
JUDGE CANNONE: Make sure you had what? A My checks and balances. Sorry.
MR. JACKSON: Checks and balances?
MR. PAUL: Just to make sure I’m more on the same page of what we understand what’s going on at trial.
MR. JACKSON: You wanted to make sure that you’re on the same page with Mr. Lally about what’s going on at trial, correct?
MR. JACKSON: All right. Did Mr. Lally take notes?
MR. JACKSON: Well, you were watching him. I mean, was he writing something down?
MR. JACKSON: Ms. McLaughlin was there. Was she taking notes?
MR. JACKSON: You didn’t see her either?
MR. PAUL: I don’t know if they were, people were taking notes, writing stuff down, or what they’re writing stuff down in relations to our, well, conference.
MR. JACKSON: Did you give him an opinion -- we’ve asked whether or not you were asked to give an opinion, and you said, "Yes, yes, yes, I was."
MR. JACKSON: Did you give an opinion at that meeting about whether or not you believe in your opinion the contact between the SUV and Traverse, and Lexus and the Traverse, could result in the damage to the taillight -- in damage to the taillight?
MR. JACKSON: What did you tell him in the meeting?
MR. JACKSON: Okay. So what you related to him was exactly what you’ve relayed in this court?
MR. JACKSON: All right. And he asked you -- sorry. He told you that he was going to ask, "I’m going to ask you to look at the video," correct?
MR. JACKSON: "You’re going to be asked a series of questions about that video," correct?
MR. PAUL: He asked -- he showed me the video, and he said, "Okay, this is the video. This is where they think the taillight was broken, and these are the pictures of this car that they took," so he asked my opinion on do I think that’s where a taillight would be broken.
MR. JACKSON: And he said -- and he told you need to make sure that you tell the jurors that couldn’t have happened in this impact, right?
MR. PAUL: He didn’t tell me to make sure jurors - I mean, that’s my opinion on - I don’t - it doesn’t appear to happen in that video.
MR. JACKSON: Did he tell you that it would be helpful to the prosecution if you said that it would be - I’m sorry - that it was inconsistent with the taillight break?
MR. LALLY: Objection.
JUDGE CANNONE: I’m going to allow it. Did he tell you it would be helpful to the case if you said that?
MR. JACKSON: But you knew it would be, right?
MR. JACKSON: Got it.
MR. PAUL: If it looked like it was consistent, I would say it’s consistent. If it wasn’t consistent, it’s not consistent --
MR. JACKSON: I’m sure that’s --
MR. JACKSON: I’m sure that’s what you would say.
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Okay. So comments are not appropriate for the jury. They are also not appropriate for me, Mr. Jackson.
MR. JACKSON: Understood. Understood, Your Honor.
MR. JACKSON: Did you formalize your new opinion - because this is a new opinion, right? You’ve never been asked this opinion before?
MR. JACKSON: Did you formalize this new opinion in any kind of report or memorialize it in any way?
MR. JACKSON: Did Mr. Lally ask you to create a report of some sort which you’d then turn over to the defense so that we would know that you had a new opinion that you were going to testify about?
MR. JACKSON: Did you save those notes that you took about making sure that you were on the same page as Mr. Lally?
MR. JACKSON: Where are they?
MR. JACKSON: They’re in your report?
MR. PAUL: Yeah, as I was writing a report, I just kind of like just, you know, highlighted stuff that I wanted to make sure I’ve memorized them and they’re in my report.
MR. JACKSON: Okay. I’m talking about notes specifically about this video, seeing this video and rendering a new opinion about this video.
MR. PAUL: No, I didn’t have notes specifically about this video. I didn’t write anything down saying, "I must do this on this video."
MR. JACKSON: Did you write anything down about the new opinion that you had come up with related to this video?
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: And your opinion ultimately that you imparted to Mr. Lally in that meeting was that the car did not move and the snow did not move, correct?
MR. JACKSON: I think that’s all I have.
JUDGE CANNONE: Did you want to follow up at all, Mr. Lally?
MR. LALLY: No, thank you, Your Honor.
JUDGE CANNONE: All right. So Trooper, you are all set for today. We will see you Monday morning.
(Witness exits.)
JUDGE CANNONE: So you’re moving to exclude this. I’ll hear you, Mr. Jackson.
MR. JACKSON: Your Honor, it’s very clear that this is a blatant discovery violation. The Commonwealth has at least the obligation to provide us with any new opinions that any expert is going to testify to on direct examination. They’ve known about this witness for not months, for a year, for a couple of years. They’ve known exactly what this witness has memorialized in his official report. They knew that the only thing that we had was the official report. They met with him two weeks ago. This has become a pattern of conduct by the Commonwealth over and over and over. We’re finding these witnesses getting on the stand, finding out that there’s been a sort of preemptive strike in some sort of a prep interview where they’re coming up with new opinions, new conclusions, new facts. It happened with Jennifer McCabe, this new fact about coming up -- going to Michael Lank’s house.
It happened with Officer Saraf coming up with a new determination about what was said or not said at the scene that we had never heard before. That was also in a prep session of some sort, or I believe it was. And then this witness, literally -- it’s not even like just, was it light out or was it dark out. This is a completely new opinion based on evidence that we presented both in -- or talked about in opening statement and have presented variously throughout this trial, and this officer gets on the stand and now has a new central opinion about whether or not we’re right and that taillight lens could be cracked. That’s something that should have at least been reduced to writing, and even if it was reduced to writing, it should have been excluded because it’s a discovery violation. It’s late. We don’t have time to prepare for it, and we’re caught off guard. I used the word at sidebar, “ambush”, and I know that rankles the Court and the Court doesn’t like it, but that’s exactly what it feels like.
JUDGE CANNONE: Well, that’s been used both ways here, right? So it’s a word -- let’s just take it out of here. Make your point. Okay?
MR. JACKSON: I’ll see if I can come up with a synonym for it. I feel like I’m taking --
JUDGE CANNONE: I understand your argument, so focus on -- just continue where you were, but no comment whether I like “ambush” or don’t like “ambush”. It’s a word I’ve heard a lot on both sides.
MR. JACKSON: I understand, Your Honor. My point is the evidence that now is being sought should never be presented in front of a jury. We didn’t have opportunity to get this in advance. This has at least, very least, been in the Commonwealth’s possession for weeks. He took notes about it. He now says, ‘Well, I didn’t take notes about that specifically.’ I don’t believe that as far as I can throw him. I think he did take notes about it. He was shown the video, he provided a new opinion, Mr. Lally knew that he was providing a new opinion, and then the first time he discloses this opinion is in front of the sixteen jurors -- fifteen jurors. We would ask for its exclusion, Your Honor, and I’ll submit.
JUDGE CANNONE: All right. Mr. Lally?
MR. LALLY: Yes, Your Honor. AS far as a pattern, especially coming from counsel, I simply find it laughable. As far as Officer Saraf, I think what counsel is referring to was testimony that was in his grand jury testimony. He was crossed about whether or not it was in his report, but it was in his grand jury testimony. As far as Ms. McCabe is concerned, that was regarding reciprocal discovery that was given to the Commonwealth weeks into trial by the defendant. It was then shown to a witness, which was perfectly permissible. Counsel asked a question of Ms. McCabe on cross, and she was aware of the material based on the late disclosure of reciprocal discovery. So there’s no violation there. As it relates to -- and why I say laughable, Your Honor, is that I still --
JUDGE CANNONE: So I don’t like hearing you say laughable.
MR. LALLY: Understood.
JUDGE CANNONE: Just stick to what the arguments are, okay?
MR. LALLY: With respect to this witness --
JUDGE CANNONE: Hold on. Quit the finger-pointing, name-calling, things like that, please.
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: I know it’s been a long week. It’s been a particularly long day, but just focus on what you want your argument to be.
MR. LALLY: And I apologize to the Court for that, Your Honor. With respect to this testimony, it’s well within his realm as a crash reconstructionist. This is a witness who has responded to and investigated hundreds of crashes involving damage to vehicles, simply making an observation of contact between two vehicles or purported contact between two vehicles on a video. The force is self-evident, and whether or not that force is sufficient to cause the damage that he observed, personally observed, on the defendant’s vehicle is well within his expertise and should be permissible as far as for this witness to be able to testify to.
JUDGE CANNONE: What about the non-disclosure to the defense about showing this video and asking for an opinion? What about that?
MR. LALLY: So, Your Honor, what I would say is I did not show this video and ask his opinion. This is a video that actually the trooper mentioned to me that he had seen over the course of while the case was pending, probably over a year ago, that he had seen that video. What I showed him was the photographs of Mr. O’Keefe’s vehicle and asked whether or not he observed any damage consistent with the damage to the taillight observing or popping up on Mr. O’Keefe’s vehicle.
JUDGE CANNONE: And why wasn’t that turned over?
MR. LALLY: In hindsight, it should have been, Your Honor.
JUDGE CANNONE: All right. It’s late. I’m not ruling here. I want to review anything. I would like - I’m not obviously taking any of the evidence home with me. I would like if it’s possible for what your IT person did on the expanding like he did. This second time, maybe I missed it, but I didn’t see the tire move this time.
MR. JACKSON: It did.
JUDGE CANNONE: So I’d like that. I’d like that video, and I would like - what’s the exhibit number here?
MR. LALLY: It’s Exhibit 6. Do you want just that video, Your Honor?
JUDGE CANNONE: And the pictures of the cars, whatever was shown during this voir dire. I would like those emailed to me so that I can look at them this weekend while I’m deciding, or put them on a flash drive right now.
MR. JACKSON: That’s what I’m thinking.
(Inaudible.)
JUDGE CANNONE: I’m sorry. I can’t hear you.
VIDEO PLAYBACK: We’ll do a screen record and get it to the Court by email. We can do that. I just need an hour once we get back to home base.
JUDGE CANNONE: Okay. All right. Ms. Gilman, will you burn what you have for me before you leave?
(Inaudible response.)
MR. JACKSON: Your Honor, if I could, I just want to close one loop.
JUDGE CANNONE: Okay.
MR. JACKSON: When I was referring to Ms. McCabe, I want to make sure that this is clear because this has come up a couple of times. The only thing I was referring to or what I was referring to - it’s not the only thing - but what I was referring to with Ms. McCabe is after Ms. McCabe testified, days and days and days after she testified and she was excused as a witness, then we got the report from Lieutenant Tully about the new information that she disclosed on the witness stand. In other words, she was cross-examined about it, et cetera, and then after she testified and was cross- examined and gone, then we got a report that predated her testimony that was in the possession of the Commonwealth or at least in the possession of Lieutenant Tully. That’s what I was talking about, and I just wanted to make sure the record was clear. We don’t need to go into it any further.
JUDGE CANNONE: Did you want to add anything to that, Mr. Lally?
MR. LALLY: No.
JUDGE CANNONE: All right. So I’ll see you Monday morning.
(Court in recess.)