Commonwealth v. Read — Trial ArchiveJoseph Paul — Redirect/Recross
256 linesREDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good morning, Trooper. Now, with regard to your testimony as far as that triggering event, when the two events on twelve thousand sixty-nine B, you testified that that was consistent with a pedestrian collision; is that correct?
MR. LALLY: Again, if you could tell the jury why is that consistent with a pedestrian collision/
MR. LALLY: The one going 22 miles per hour in reverse --
MR. PAUL: Right. Okay. Yeah, so why I think that's consistent with a pedestrian strike is because of the sudden change in the speed. It drops down by a half mile-per-hour. The external(ph) pedal is staying constant at the same percentage, and the steering wheel angle also turns to the right.
MR. LALLY: Now, your overall opinion is based on what you did as far as your reconstruction, correct?
MR. LALLY: And other information that you had at your disposal in formulating your opinion?
MR. LALLY: Yes.
MR. LALLY: And that would include physical evidence; is that correct?
MR. LALLY: And that would include witness statements, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to form.
MR. LALLY: What, if anything, else would that include?
MR. LALLY: And witness statements, would that also include statements of the defendant?
MR. LALLY: Are you aware that the defendant indicated in statements to troopers that she conducted a three-point turn --
MR. JACKSON: Objection.
MR. LALLY: -- in the area of 34 Fairview Road?
JUDGE CANNONE: I'm going to allow that question.
MR. LALLY: And what you observed in that triggering event, is that from that mileage was that consistent with the defendant's own statement?
MR. LALLY: Now let me ask you a little bit if you could again for the jury, clarify the difference between what you termed as an area of impact versus a point of impact.
MR. PAUL: Yes, an area of impact is broader, it's a bigger area. Point of impact would mean something as a -- actually, right there. That would be the area of impact.
MR. LALLY: Now if I could ask the cell phone that was located under Mr. O'Keefe's body. That location, is that also consistent with the linear path that you were testifying about earlier?
MR. LALLY: And do you know whether or not that cell phone was in his hand or in his back pocket or somewhere else?
MR. LALLY: And now as far as the -- let me ask you this. You were shown some photographs of some taillight pieces near a fire hydrant, correct?
MR. LALLY: As far as the area of impact, that was from what you determined that with Mr. O'Keefe's sneaker; is that correct?
MR. PAUL: Yeah, it was within -- what I've had for initial evidence I said the area of impact was the start of that -- in that area.
COURT REPORTER: I'm sorry. A So what I was saying was the area of impact is -- was prior to the area the sneaker was. It was in that path just prior to that area.
MR. LALLY: And why did you determine that it was in that area?
MR. LALLY: And, I'm sorry, just first point of evidence in relation to what and sort of how it was -- how the evidence was configured as it was evidence?
MR. PAUL: That was pointed to me as the first point of evidence away from -- the furthest (indiscernible) at that time that knew away from the pedestrian.
MR. LALLY: May I approach the witness, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: And, sir, I'm showing you what's been marked as Exhibit 58. Do you recognize what's depicted in that photograph?
MR. LALLY: And, Your Honor, with the Court's permission, if I could publish that to the jury.
JUDGE CANNONE: Okay. What exhibit number is it?
MR. LALLY: Fifty-eight.
JUDGE CANNONE: Thank you.
MR. LALLY: And, Trooper Paul, do you recognize what's up on the screen?
MR. LALLY: And what do you recognize that to be?
MR. LALLY: And as far as these photographs and the photographs shown to you by Mr. Jackson on cross- examination, do you know when those photographs were taken?
MR. LALLY: Do you not know if those photographs were taken on February 3, 2022?
MR. JACKSON: Objection.
JUDGE CANNONE: The objection is sustained.
MR. LALLY: Now, Trooper, if you could, using the laser pointer, I know you've done on this diagram, but if you could with the laser pointer and mark what's on the screen as Exhibit 58, direct the jury's attention to where you believe the area of impact to be between the defendant's Lexus and Mr. O'Keefe.
MR. LALLY: And as far as that linear path that you were talking about from the area of impact, where that go from and where did that go to?
MR. LALLY: Ms. Gilman, you can take that down. May I approach just to retrieve, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Now, Trooper, if you could explain to the jury as far as what you were describing as Mr. O'Keefe's post impact movement starting sort of with the point of impact between himself and the SUV to the point where he comes to final rest on the lawn.
MR. PAUL: Yes. So he was struck along the right side in the area of his arm and then he was -- and he post impact with the Lexus, he rotated counterclockwise and eventually hit the ground and came to final rest.
MR. LALLY: And the ground, based on your understanding of the weather conditions, was frozen at the time; is that correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. Watch the form, Mr. Lally.
MR. LALLY: Yes, Your Honor.
MR. LALLY: So as far as anything in your testimony about Mr. O'Keefe's actions, does that involve a pirouette?
MR. LALLY: Is there a rotation; is that correct?
MR. LALLY: And as far as 30 feet in the air, do you have any opinion as to whether or not he flew 30 feet in the air?
MR. LALLY: And so as far as from your training and experience when it comes to pedestrian collisions, are you able to determine or calculate how much distance someone is in the air and how much distance someone sort of rolls or tumbles to their final resting position?
MR. LALLY: From your training and experience based on this collision, are you able to determine how far Mr. O'Keefe was traveling in the air versus how far he traveled tumbling or rolling after he hit the ground?
MR. PAUL: I do not have a calculation for this specific style of pedestrian crash due to the sideswipe. So if I did, I could use the formula. It would just vastly underestimate the speed of the vehicle. A Let me ask you a little bit about. You were talking about the Searle pedestrian flow formula, correct? A Correct.
MR. LALLY: And that's something that developed in the course of physics specific to reconstruction by someone named Dr. Searle, correct?
MR. LALLY: And that's S-E-A-R-L-E; is that correct?
MR. LALLY: And with respect to Dr. Searle's formula, why is that inapplicable in sideswipe collision versus some other type of collision?
MR. PAUL: Because it takes in -- it's looking for more not so much the formula, it's how much projection efficiency that would have occurred, how much percentage of the speed of the striking vehicle would've happened. In order for the formula to work, the more of the body would have strike the vehicle, the more efficient the outcome would be in the speed.
MR. LALLY: And the center of mass that you were talking about sort of in the collision sequence, what, if any, role does that play in regard to your ability to do that calculation?
MR. PAUL: It would just, like I said, it would underestimate the speed of the striking vehicle due to a certain mass not in -- not within the rear of the vehicle.
MR. LALLY: And not to twist your words or anything, but as far as when you say underestimate, that would not be an accurate reflection of the defendant's vehicle speed, correct?
MR. LALLY: Now, you were asked some questions about the glass and indicated that were a number of reasons why the glass would travel with him being Mr. O'Keefe. Can you explain what those are?
MR. PAUL: Yeah, the glass could have struck the vehicle also in the same way. It could have still been attached to his hand and still gone with him the same way. It could've been attached to his body in mid-air. There's -- that's the multiple ways that the glass would have stayed with him.
MR. LALLY: Now in speaking of collision, sequences, particularly collisions involving multiple vehicles, vehicles are affixed with bumpers, correct?
MR. LALLY: What's the purpose of a bumper on a vehicle?
MR. JACKSON: Objection.
JUDGE CANNONE: Scope.
MR. JACKSON: Yes.
JUDGE CANNONE: Sustained.
MR. LALLY: Your Honor, if I may. I don't believe it is.
JUDGE CANNONE: So why don't we come to sidebar.
(Sidebar commences:
(Sealed portion of transcript.)
end of sidebar.)
MR. LALLY: I'll try it again, Trooper. If I could ask you, what is the purpose of a bumper on a vehicle?
MR. LALLY: And with reference to the scratches that you were asked about on the vehicle on sort of the right rear quarter panel, what, if any, relationship does the bumpers and their interaction have to your opinion as it relates to that?
MR. LALLY: Getting back to what you just testified about bumpers. You were also asked some questions about scratches on the right rear corner panel of the vehicle, correct?
MR. LALLY: And what, if any, relationship does the bumpers on the vehicle and sort of their intended purpose have with relation to the scratches that you absorbed?
MR. PAUL: So the bumpers on the side was more of -- this wasn't more of direct on hit with the bumper. It was more of the side scraping of the paint or the bumper.
MR. LALLY: Now, the presence of Mr. O'Keefe's DNA on the taillight, is that consistent with a pedestrian collision?
MR. LALLY: Now, as far as the glass not matching, are you familiar -- are you aware that the lab's actual findings were that the glass on the bumper and the glass on the roadway was not -- was just -- I'm sorry - - not found to be consistent with each other. Is that your understanding, if you know?
MR. LALLY: And were you also aware that the lab's finding was that the glass on the bumper was consistent with the glass on the roadway?
MR. LALLY: Now in order to construct your diagram, your testimony I believe was that you had used sort of diagrams in the process of that; is that correct?
MR. LALLY: And if I could turn back to that 12629B, the mileage from the Techstream data.
MR. LALLY: The three-point turn that you observed and the 24.2 mile per hour straight line for approximately 62 feet, how far apart time-wise within that particular triggering event were two incidents?
MR. LALLY: And as far as any of the other Techstream data that you observed, was there any other triggering event that included a three-point turn?
MR. LALLY: Now as far as the defendant's path of travel, is it your understanding that that was obtained from a multitude of different witnesses?
MR. LALLY: Now with reference to you were asked some questions about the defendant's cell phone as far as GPS locations. Were you aware that the defendant's cell phone wasn't able to be accessed until by law enforcement --
MR. JACKSON: Objection.
MR. LALLY: -- 2023?
JUDGE CANNONE: Sustained.
MR. LALLY: Were you aware that the defendant's cell phone had GPS locations turned off on the defendant's cell phone?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow that.
MR. LALLY: Now as far as placing the vehicle during that triggering event, 12629B, did you use key cycles to put it back at that location at that time?
MR. LALLY: What did you use?
MR. LALLY: And why would you look at the odometer mileage over the key cycles?
MR. PAUL: Because I can physically see the odometer mileage at the vehicle at the time of my inspection.
MR. LALLY: And why would -- well, let me ask you this. In your opinion as far as that is concerned sort of backtracking to a specific location, which is more reliable, the odometer or the key cycles?
MR. LALLY: And why is that?
MR. PAUL: Like I said, you can physically see it when you turn the car on, and I know that's the odometer mileage that it's reading on the dashboard.
MR. LALLY: And every key cycle, is that necessarily recorded within the Techstream data?
MR. LALLY: And why not, sir?
JUDGE CANNONE: They don't what?
JUDGE CANNONE: Okay. Thank you.
MR. LALLY: As far as counsel's hypothetical with regard to the key cycles, is it your opinion that that hypothetical is accurate or inaccurate?
MR. LALLY: And why is that?
MR. PAUL: Because it would also be -- you also add the odometer mileage onto the key cycle. So those key cycles and odometer mileage are on the same trigger, and plus the data -- the data seems consistent with everything else that's going on with this collision.
MR. LALLY: Now, fair to say that you were not outside of 34 Fairview Road on January 29, sometime around 12:20 to 12:30 a.m.; is that correct?
MR. LALLY: And so fair to say that you don't know exactly how Mr. O'Keefe's and/or glass or anything that he's holding interacted with the defendant's vehicle at that time?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it. Is that true?
MR. LALLY: And so based on your training and experience and the number of pedestrian crashes that you've investigated, again, if you could, one last time just describe to the jury how you believe the vehicle interacted with Mr. O'Keefe and why?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. It's asked and answered.
MR. LALLY: With reference to what you've described as far as the interaction between Mr. O'Keefe and the vehicle, why is that your opinion?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow that.
MR. PAUL: Based on the evidence from the vehicle, based on the injuries to John O'Keefe, the taillight appears to be broken and its sharp plastic pieces that could've ripped his arm, and also the dent where the scratches above it is consistent with a hand holding a glass and the glass on top smashing on the vehicle and the hand smashing the vehicle. You can see there's a line between scratches and a dent there.
MR. LALLY: Thank you. Nothing further.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Very briefly. I just want to make sure I clear something up about the key cycles. You're not suggesting that every key cycle in the history of cars is on this page, correct?
MR. JACKSON: I'm holding up Exhibit 591, Your Honor.
JUDGE CANNONE: Okay.
MR. JACKSON: That indicates key cycles that have triggering events, correct?
MR. JACKSON: Triggering events are something that the manufacturer includes. It's basically a list of items that will -- that will be a triggering event, correct?
MR. JACKSON: It's a list of items basically for mechanics to figure out if there's some unusual driving or unusual event with the vehicle, correct?
MR. JACKSON: But the key cycles go in order, they're numerical, one through whatever?
MR. JACKSON: In the hypothetical that I gave you on direct exam -- on cross-examination, would those driving incidents, each one of those, would represent a key cycle, correct?
MR. PAUL: I don't -- so in your hypothetical, I mean I assumed that it should create a key cycle, but that's -- you can’t just say that key cycle is from that because I didn't just use key cycles. I used the odometer mileage on top of it. So you have to have key cycle and odometer.
MR. JACKSON: Right. Interestingly, though, when you testified on direct examination, you said your analysis, and this was on Friday, before the weekend -- by the way, over the weekend did you watch anything on, I don't know, YouTube or any social media?
MR. JACKSON: Nothing?
MR. JACKSON: Did you have any conversations with Mr. Lally about these key cycles and the problems?
MR. JACKSON: Did you have any conversations with anybody about the issues with the key cycles?
MR. JACKSON: Did you realize at some point between Friday and today that I was going to probably ask you some questions about key cycles?
MR. LALLY: Objection.
JUDGE CANNONE: Did you realize that yourself?
MR. JACKSON: So on Friday you didn't mention that your analysis was based on mileage, did you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: On Friday, did you mention that your analysis was predicated on mileage?
MR. LALLY: Objection.
JUDGE CANNONE: I'll see you at sidebar.
(Sidebar commences:
JUDGE CANNONE: What's the nature of the objection?
MR. LALLY: First of all, yes, he did, but secondly, he's asking a question --
JUDGE CANNONE: First of all what?
MR. LALLY: Yes, he did mention that during his testimony on Friday, but he's asking questions about his testimony Friday which is beyond the scope of direct.
MR. JACKSON: On redirect, he asked him specifically about key cycles and what he predicated his decision on - key cycles versus mileage. On Friday, he said he based his reconstruction on the key cycles. He mentioned mileage, but he didn't say that he was basing his opinion on mileage. He said he's basing his opinion on key cycles. I think the jurors need to hear that.
JUDGE CANNONE: I'm not going to go back through all of my notes to find an example of what you did. I'll let you have that question. I'll let a very short follow-up by Mr. Lally.
MR. JACKSON: Okay.
JUDGE CANNONE: No, that's fine.
MR. JACKSON: The witness is just trying to confuse issue. He's trying to run to mileage because he knows he's messed up on key cycles.
JUDGE CANNONE: I don't think he's trying to confuse anybody.
MR. JACKSON: Oh, my gosh, well.
JUDGE CANNONE: I think that he is himself
(indiscernible).
MR. JACKSON: Yeah, okay. Thank you.
JUDGE CANNONE: All right. So that's how we're going to do it this one question, and then Mr. Lally gets one or two questions.
end of sidebar.)
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Trooper Paul, on Friday, you indicated pretty clearly that your analysis was based on the key cycles starting at 1164 when you started your testing and 1162, which was the key cycle you claimed on Friday was at 34 Fairview?
MR. PAUL: It wasn't based on it. That's how I would describe it. I said key cycles. I based it on they were close within proximity to each other, but I've always said it's key cycles and odometer mileage plus all the information within the triggers themselves. So it wasn't just one or the other.
MR. JACKSON: And you said on Friday that once you started your testing at 1164, it was two cycles earlier that had the triggering events, meaning 1162 that you claimed were at 34 Fairview?
MR. JACKSON: But in the hypothetical, if there were four events, four driving -- four key cycle events between 1164 and 1159, it could not have occurred at 1162, correct, 34 Fairview, in my hypothetical?
MR. JACKSON: Right. And last question, if you got the route of travel incorrect, if your presumption of the route of travel was incorrect on that vehicle in the days earlier, then your mileage would be incorrect also, correct?
MR. JACKSON: The odometer reading.
MR. JACKSON: My point is your analysis that's based on the odometer reading, thirty-six miles here, twelve miles there, two miles here, five miles there, if you got the route of travel wrong and the route of travel was different, your assumptions about the odometer readings would be incorrect as well, correct?
MR. JACKSON: Which means you got the path of travel wrong?
MR. PAUL: -- I purposefully put down a range in my Google images shown because I couldn't tell you her definitively route of path for every single way, but I know that she's -- it's possibly a possibility that she could travel 36 miles within those locations that she traveled post leaving Fairview Road.
MR. JACKSON: Or if that mileage was put on at key cycle at 1162, then that would mean that would mean that the vehicle would already be in Massachusetts state police custody, right, in Trooper Proctor's custody?
MR. LALLY: Objection.
JUDGE CANNONE: So that's beyond the scope.
MR. JACKSON: That's all I have.
JUDGE CANNONE: All right. Mr. Lally.
MR. LALLY: Just very briefly.
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: The range that you came up with for the defendant's path of travel, does that fit with the path of travel the odometer reading putting the defendant's vehicle in the area of 34 Fairview Road when it does the three-point turn and then eight minutes later when it travels 24.2 miles per hour in a straight light in reverse for approximately 62 feet?
MR. LALLY: Nothing further.
JUDGE CANNONE: All right. You are all set, Trooper.
(End of testimony.)