Commonwealth v. Read — Trial ArchiveNicholas Guarino - Direct (Part 2)
448 linesCOURT CLERK: Same situation — step up, sir. Do you solemnly swear that the testimony you shall give to the court and the jury in the matter now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?
MR. GUARINO: Affirms. Good morning.
JUDGE CANNONE: Whenever you're ready, Mr. Lally.
MR. LALLY: Thank you. Good morning, sir.
MR. GUARINO: Good morning.
MR. LALLY: Taking you back to the other day — I have been showing you — you had testified about some extraction reports that you had conducted from the various forensic extractions that you had done pertaining to both the defendant's phone and Mr. O'Keefe's phone, correct?
MR. GUARINO: Yes, sir.
MR. LALLY: Your honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: Showing document. Sir, do you recognize that?
MR. GUARINO: Yes.
MR. LALLY: What do you recognize that to be?
MR. GUARINO: Sorry. Karen Read's phone call logs, and that's specifically from January 28th and January 29th.
MR. LALLY: Is that correct?
MR. GUARINO: Yes. It starts — the 28th — at 12:33 — I'm sorry, the 29th — at 12:33 to 3:19 p.m. on the 29th.
MR. LALLY: And just for ease of reference, does it sort of go in descending order, as far as the earlier calls are on the last page and then the more recent calls are on the first page?
MR. GUARINO: Yes, that's correct.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes. Approaching
MR. LALLY: [Showing another document.] Sir, do you recognize that?
MR. GUARINO: Yes.
MR. LALLY: What do you recognize that to be?
MR. GUARINO: This is Karen Read and Kerry Roberts call log.
MR. LALLY: That's an extraction report that you created from the defendant's phone, is that correct?
JUDGE CANNONE: Keep your voice up.
MR. GUARINO: Yes. Sorry.
MR. LALLY: May I approach again, your honor?
JUDGE CANNONE: Yes.
MR. LALLY: I'd introduce and admit as the next [exhibit].
JUDGE CANNONE: Okay.
MR. JACKSON: No objection.
JUDGE CANNONE: [Exhibit] 634.
MR. LALLY: May I approach again, your honor?
JUDGE CANNONE: Yes.
MR. LALLY: [Showing another document.] Sir, you recognize that?
MR. GUARINO: Yes.
MR. LALLY: What do you recognize that to be?
MR. GUARINO: This is the chats from John O'Keefe and Chris Albert.
MR. LALLY: And again, that's an extraction report that you created from Mr. O'Keefe's phone, is that correct?
MR. GUARINO: Yes, it is.
MR. JACKSON: No objection.
JUDGE CANNONE: [Exhibit] 635.
MR. LALLY: May I approach — oh, I'm sorry. May I approach again, your honor?
JUDGE CANNONE: Yes.
MR. LALLY: [Showing another document.] Sir, I ask you to look at that. Finished? Okay. Do you recognize that, sir?
MR. GUARINO: Yes. This is Karen Read's full chat report of everyone from the 29th on.
MR. LALLY: May I — your honor, I'd introduce and admit as the next [exhibit].
JUDGE CANNONE: Yes.
MR. JACKSON: No objection.
MR. LALLY: I'm sorry. May I have the last one? Approaching witness. Thank you. Returning to you, what's now been marked as exhibit 636. Your honor, with the court's permission, I'd like to publish this to the jury.
JUDGE CANNONE: Yes, sir.
MR. LALLY: I'm going to direct your attention to the exhibit before you, that's now been marked as exhibit 636. And Miss Gilman — I'm sorry — Trooper Guarino and Miss Gilman, if I could direct your attention to page three. Do you have that before you, sir?
MR. GUARINO: Yes, I do.
MR. LALLY: And on page three, who is that a conversation with?
MR. GUARINO: Laura Sullivan.
MR. LALLY: And that conversation essentially continues from page three to page six, is that correct?
MR. GUARINO: Yes, it does.
MR. LALLY: And so I'm going to ask you — similar to what I asked you the other day — if you could read from that conversation in its entirety, indicating the speaking content of what's being said and the date and time associated with that message.
MR. GUARINO: Yes. First message is from Laura Sullivan at 12:45 p.m. on January 29th, 2022. "Karen, it's Laura, please call me." Karen says, "Hi, Laura," at 1:07 p.m. Karen then says, "John passed away." At 1:07 p.m., Laura: "Karen, I'm shaking, I'm so sorry." At 1:07 p.m., Karen says, "We found him outside in the snow at 5:00 a.m." At 1:07 p.m., Laura: "I can't stop crying." At 1:07 p.m., Karen: "Thank you." At 1:07 p.m., Laura finally says, "Why was he out there?" At 1:07 p.m. — oh, sorry — Karen replies, "He left the party we were at. I don't know what time. I didn't even go in. I went to bed." That's at 1:08 p.m. Laura says, "Oh, my God." At 1:08 p.m., Karen: "My heart breaks for — excuse me — my heart breaks for everyone." At 1:09 p.m.
MR. LALLY: Thanks. So when those text messages to Miss Sullivan in the afternoon of the 29th, she indicates to Miss Sullivan that they located Mr. O'Keefe around 5:00 a.m., is Transcript ends mid-sentence That correct?
MR. GUARINO: Yes, it is.
MR. LALLY: Now, sir, if I could direct your attention to page 28 through 29 of those messages in the exhibit before you. On page 28 and 29, who is that a conversation with?
MR. GUARINO: This is Karen and John O'Keefe. These are conversations from the early — these conversations on page 28 through 29 of this exhibit occur in the early morning hours of January 29th, correct?
MR. LALLY: Yes, that's correct. And if you could, sir, again, please read as far as who's speaking, what they're saying, and what date and time these are being sent.
MR. GUARINO: Yes. Karen Read to John O'Keefe at 12:55 a.m. on the 29th: "I'm going home," followed by — excuse me — "see you later." At 1:02 a.m. she texts John again saying "your kids are [unintelligible] alone," and at 1:04 a.m. she says "I'm back in Mansfield, the kids are home alone."
MR. LALLY: Thank you. May I approach?
JUDGE CANNONE: Just retrieve. Yes.
MR. LALLY: May I have a moment?
JUDGE CANNONE: Sure. Yes.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: I'm showing you two documents. And, Mr. Officer, we can put the — do you recognize each of those documents, sir?
MR. GUARINO: Yes. One is the Karen Read call log report — just want to confirm which one this is — and then John O'Keefe's full call log report on the 29th.
MR. LALLY: Now, sir, if I could direct your attention to the defendant Miss Read's call log reports, and specifically if I could draw your attention to what's been — they're enumerated as far as certain box numbers, correct, one through whatever it goes on the last page?
MR. GUARINO: Yes.
MR. LALLY: I can direct your attention to boxes 113 and 114. Do you see those entries, sir?
MR. GUARINO: Yes.
MR. LALLY: Now, as far as the time related to box 113 and 114, what are the time stamps associated with that?
MR. GUARINO: 1/29/2022 at 12:36 a.m., 41 seconds, and then another one at 12:36 and 10 seconds a.m. on the 29th.
MR. LALLY: And is there any indication within that report as far as whether or not those calls are answered, those calls are missed, those calls are rejected — what's listed?
MR. GUARINO: It says answered. And we'll get to this a little bit more in a moment, but with regards to that 12:36 time, from your review of both the defendant's phone and Mr. O'Keefe's phone, is there a voicemail that the defendant left Mr. O'Keefe at that time frame? There was a voicemail at 12:37 a.m. These ones here, it looks like they're 3 seconds and 5 seconds, and they're listed as answered.
MR. LALLY: Is that correct?
MR. GUARINO: That is correct.
MR. LALLY: Now, sir, if I could turn your attention over to Mr. O'Keefe's call report, and specifically I'm going to ask you to direct your attention to what's been labeled as box number 134, and then 134 with the one in parentheses following that. Do you see those entries, sir?
MR. GUARINO: Yes.
MR. LALLY: And what is the date and time associated with those entries in Mr. O'Keefe's records?
MR. GUARINO: His records show number 134 is 12:36, 9 seconds, on the 29th, and then 134, the one in parentheses, 12:36 and 9 seconds as well, but call duration 0 seconds.
MR. LALLY: And as far as any indication on those calls as far as whether they're answered, they're missed, they're rejected — or what are they listed as?
MR. GUARINO: There's nothing. Also, 133 is the same call — that one says "missed," and it's at the same time stamp of 12:36 and 9 seconds.
MR. LALLY: So the same call, around the same time frame, shows up in Mr. O'Keefe's report as "missed" and shows up in the defendant's report as "answered"?
MR. GUARINO: Correct. That is correct.
MR. LALLY: And that is around the time that the defendant is calling the victim repeatedly and leaving voicemails on Mr. O'Keefe's phone?
MR. GUARINO: Yes, that's correct.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: Now, Trooper, you conducted an analysis of both the defendant's phone and Mr. O'Keefe's phone, correct?
MR. GUARINO: That is correct.
MR. LALLY: And from your analysis of that phone, were you able to determine approximately how many calls occurred from the defendant's phone to Mr. O'Keefe's phone from the time period shortly after 12:30 a.m. to the time period shortly after 6:00 a.m.?
MR. GUARINO: There were over 50 — I think it was 53 or 55.
MR. LALLY: And any of those calls, from your review of those records, indicate any sort of conversation as far as duration, as far as being labeled as answered, anything to that effect that Mr. O'Keefe actually picked up the phone and spoke to Miss Read?
MR. GUARINO: No.
MR. LALLY: Now, with regards to those phone calls from the defendant to Mr. O'Keefe, what, if anything, did you find from Mr. O'Keefe's phone in relation to voicemails left by the defendant?
MR. GUARINO: There were — excuse me — eight voicemails on Mr. O'Keefe's phone, from the 29th until the phone was discovered, all from Miss Read, no one else.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: Do you recognize that, sir?
MR. GUARINO: Yes.
MR. LALLY: What do you recognize that to be?
MR. GUARINO: It's the John O'Keefe voicemails from Karen Read on his phone, from that period they were just speaking about, on January 29th.
MR. LALLY: Yes, that's correct. May I approach?
JUDGE CANNONE: Yes.
MR. YANNETTI: We have no objection. 637. Now, sir, from your review of the defendant's phone — before we get to those — from your review of the defendant's phone, what, if anything, were you able to observe or ascertain that the defendant's phone did at approximately 12:36 a.m.?
MR. LALLY: I'd like to introduce the next exhibit.
MR. GUARINO: So, by looking at the timeline in the phone, we're able to see that Miss Read's phone auto-connected to John O'Keefe's Wi-Fi at his house at 12:36 a.m. They know this because it's a password-protected access to the Wi-Fi network, so you would have to know the password to get into this Wi-Fi network, and that would be the home at [unintelligible] Avenue.
MR. LALLY: Correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: Your Honor, with the Court's permission, if we could publish each of the eight voicemails to the jury.
JUDGE CANNONE: Okay.
MR. LALLY: Are we going to hear which time each one is? Yes. And, Trooper, again, similar to the other messages, just for point of reference, the earliest of the voicemails is the last in the list and the most recent is at the top of the list. Is that correct?
MR. GUARINO: Yes.
MR. LALLY: Now, as far as this first voicemail, what time did this occur?
MR. GUARINO: 12:37 a.m.
MR. LALLY: And with the Court's permission, if I could play that for the jury.
JUDGE CANNONE: Yes.
MR. LALLY: Miss Gilman, if you could — have the second message — sorry, just — if you can pause right there, please. I apologize. I just wanted the siren to go by.
JUDGE CANNONE: Oh, that's fine.
PARENTHETICAL: [voicemail 3: "john, i'm with your kids. nobody knows."]
MR. LALLY: Now the fourth message — stop. What time was that received by Mr. O'Keefe's phone?
PARENTHETICAL: [voicemail 4 played]
MR. LALLY: So can we just turn the air conditioner off just a second, please? So you just played it?
MR. LALLY: And before Miss Gilman presses play again — Trooper, what time is this second message?
MR. GUARINO: 12:42.
PARENTHETICAL: [voicemail 5: "it's 1 in the morning. i'm with your niece and nephew, you pervert, you pervert."]
MR. LALLY: And the sixth message, sir — what time was that received by Mr. O'Keefe's phone?
PARENTHETICAL: [voicemail 6: "john, i'm going home. i cannot leave you. [unintelligible]
MR. LALLY: I need to go home. You — you are using me right now. You're — another girl — [unintelligible] next to me. You're a loser. You're [unintelligible]."] The seventh message, sir — what time was that received by Mr. O'Keefe's phone?
PARENTHETICAL: [voicemail 7 played]
MR. LALLY: The last and eighth message, sir — what time was it received by Mr. O'Keefe's phone?
MR. LALLY: Coming — if you could. Now, Trooper, with reference to the third message, what time is that received?
MR. GUARINO: 12:59.
PARENTHETICAL: [voicemail playback — 6:08 a.m., eighth message, continued]
MR. LALLY: ...get... ...[unintelligible]...I don't see... ...here... ...I... Sorry...sorry... [unintelligible] ...on... End of voicemail playback
MR. LALLY: And again, when I say "received by Mr. O'Keefe's phone" — is that correct, that's the time stamp of the voicemail in his phone?
MR. GUARINO: Yes.
MR. LALLY: And Miss Gilman, if you could — with reference to that third message.
MR. GUARINO: 1:02 a.m.
MR. LALLY: Miss Gilman, if you could, when you're ready.
MR. GUARINO: Yeah. Your Honor, there was no contents — they were just like a 1-second-long message.
MR. LALLY: And, Trooper, with regard to the fifth message, what time was that received by Mr. O'Keefe's phone?
MR. GUARINO: 1:11 a.m.
MR. LALLY: Excuse me. Miss Gilman, if you could.
MR. GUARINO: 1:18 a.m.
MR. LALLY: If you could.
MR. GUARINO: 5:23 a.m.
MR. LALLY: If you could.
MR. GUARINO: 6:08 a.m.
MR. LALLY: Miss Gilman, if you could. If you could pause there for one second. I'm sorry. With respect to this message received on Mr. O'Keefe's phone at 6:08 a.m., from your knowledge of the investigation, where was the defendant, and who, if anyone, was with her around her at the time of this message at 6:08 a.m.?
MR. GUARINO: Jen McCabe, Kerry Roberts. During the message, you can hear someone on the phone with 911.
MR. LALLY: Thank you, sir. Miss Gilman, if you could.
JUDGE CANNONE: Thank you. Mr. — can we turn the air conditioning back on? Thank you very much.
MR. LALLY: Now, Trooper, in addition to the 53 phone calls that you've testified about — the defendant made to Mr. O'Keefe from that time frame, following 12:30 a.m. to approximately just past 6:00 a.m. — did you note any other calls to a contact listed within the defendant's phone as "Mom"?
MR. GUARINO: Yes.
MR. LALLY: And when were those calls placed?
MR. GUARINO: I believe there's one at 1:10-ish in the morning — I forget the exact timestamp. There's also one around 4:40 in the morning, and then a 4:42 — right around 4 in the morning, two of them. The first two weren't answered, and then the third phone call was answered.
MR. LALLY: Now, with respect to Miss Read's phone from that same time period, what if any phone calls did you observe to a contact listed in the defendant's phone as "Dad"?
MR. GUARINO: Uh, it's the same number. So when I looked at it in one report it showed as "Dad," and then when I looked at it in Cellebrite it came up as "Mom." So I don't know how it's attributing — maybe she has it listed twice. I never looked at her actual phone, so this is what the extraction is showing me.
MR. LALLY: Now, sir, you testified the other day that upon your review of the defendant's extraction reports, you were not able to determine — there were no listed GPS locations for the defendant's phone. Correct?
MR. GUARINO: Uh, like routes or anything like that.
MR. LALLY: And that was because location services was turned off in the phone — is that correct?
MR. GUARINO: That would lead me to believe yes — that location services are turned off.
MR. YANNETTI: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: So — what can you tell us about that?
MR. GUARINO: Well, for GPS coordinates and location services — that's what would get us locations in the phone. So if they're not there, they could be turned off.
MR. LALLY: Now, with respect to Mr. O'Keefe's phone — what if any analysis did you do with respect to GPS and his health data? Well, let me ask you this first, from your training, experience, and case work with respect to forensic analysis of electronic devices — what is Health Data in a cell phone? How is that recorded, and what if anything can that tell you?
MR. GUARINO: Okay. So in an iPhone you can have Health Data. To use that Health Data — the phone, if you don't have an Apple Watch paired to it, is basically just a high-tech pedometer. It's just — every time you move the phone it's going to track steps — and that's if you have it turned on. If you have the Apple Watch on, it'll get beats per minute and you get a much more robust Health Data from it.
MR. LALLY: Now, with respect to the Health Data and with respect to the GPS location for Mr. O'Keefe's phone — initially, what if any sort of analysis did you do with respect to that?
MR. GUARINO: Uh, so we checked his native locations. At 12:19 — the phone is — well, I should say this — at 12:12, his location shows that he's at the Waterfall Bar. The next set of locations shows he's at Dedham Street by Cedarcrest. And then Waze is activated for 34 Fairview. So — and then it shows me his entire route to 34 Fairview.
MR. LALLY: And what is Waze, sir?
MR. GUARINO: Uh, Waze — similar to Apple Maps — it is the GPS program that you punch in — like a Garmin-type thing.
MR. LALLY: I could take you back, just for a moment, to the Health Data from the Cellebrite extraction that you did. Um, specifically — you looked at data from 12:00 a.m. to 1:00 a.m. on January 29, 2022. Is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And as far as the Health Data was concerned, there were some entries from 12:11 a.m. to 12:32 a.m. Is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And can you describe to the jury sort of what you observed, and what if any significance those entries had to you as far as the Health Data was concerned?
MR. GUARINO: Yeah. So the health data shows — like I said, the phone is basically a high-tech pedometer. If you're moving it around it's going to think you're taking steps where you might not 1:00:05 actually be walking. His health data showed — while he's driving — that he's traveling and taking steps.
MR. LALLY: So — to lay a foundation — over the course of this investigation, your analysis — you became aware of other witness statements, surveillance video, things of that nature, as to Mr. O'Keefe's whereabouts from approximately 12:00 a.m. to at least 1:00 a.m. Is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And you're aware of — around the time just past 6:00 a.m., when —
JUDGE CANNONE: Let's hear the question.
MR. LALLY: — you're aware of the time being just past 6:00 a.m. that you've already testified to, as to when Mr. O'Keefe was discovered and 911 was called?
MR. GUARINO: Yes, that's correct.
MR. LALLY: So, sir, with respect to again that time period starting at 12:11 a.m. — what if anything did you observe with respect to the Health Data of Mr. O'Keefe as signified within the —
MR. GUARINO: So it marks when he's taking steps, ascending — ascending stairs — and distance traveled.
MR. LALLY: And so from that period of 12:11 to 12:32, there are essentially four time periods that you delineated. Is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And do you remember the precise times and sort of the distance traveled within those time frames?
MR. GUARINO: I don't remember precisely off the top of my head — with the course —
JUDGE CANNONE: Per submission made — the trooper may refer to his report just for those numbers.
MR. LALLY: You have it with you, Trooper?
MR. GUARINO: Yes, Your Honor.
JUDGE CANNONE: Thank you.
MR. LALLY: Okay. And, sir, if you could just list for the jury what you found.
MR. GUARINO: Yes. So 12:11 and 9 seconds in the morning to 12:21 and 5 seconds on the 29th, it shows that he's taking 170 steps, going 99.6 meters or 326 feet. At — sorry — at 12:21 and 10 seconds to 12:24 and 22 seconds, it shows 80 steps and 87.74 meters or 287 feet. At 12:21 and 14 seconds to 12:24 and 37 seconds, it states ascending/descending three floors. And then at 12:31:56, 190 steps.
MR. LALLY: Does that — from, based on your training, experience, and familiarity with this sort of Health Data — what, if anything, does that tell you as to whether or not the person with the phone is physically taking steps?
MR. GUARINO: That's not the case.
MR. LALLY: What is the case?
MR. GUARINO: Like I said, the phone has internal measures in it. Like I said, it's basically a pedometer, so the movement of the phone, the distance traveled — it's going to register steps. You don't have to physically be walking and moving the phone for it to register movement. Just waving it around could potentially cause it to think you're walking and moving.
MR. LALLY: Now you mentioned that from your review of Mr. O'Keefe's phone you indicated there was a Waze search for 34 Fairview Road, is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And if you could just explain to the jury, sort of — what is Waze, and what kind of information are you looking at?
MR. GUARINO: Waze is a GPS program, so you put the address you're looking to go to, it's going to tell you the fastest route, where the police are, et cetera.
MR. LALLY: And when that Waze search was conducted, is there a precise time pursuant to your review of Mr. O'Keefe's phone associated with that Waze search?
MR. GUARINO: Yes, it was at 12:20 in the morning.
MR. LALLY: And so from all of those steps and everything — if Mr. O'Keefe is searching for 34 Fairview Road, in fact, probably he's not at 34 Fairview Road, is that correct?
MR. GUARINO: That is correct.
MR. LALLY: Now with respect to the location — can you describe to the jury, are you familiar with the term, based on your training and experience, known as native locations?
MR. GUARINO: Yes.
MR. LALLY: And can you explain to the jury what that is?
MR. GUARINO: Yes. So native locations — in an iPhone, the way it pulls GPS data, it uses a satellite, Wi-Fi signal, Bluetooth, location services on apps. It takes all that data and uses it to get you the best location of where you are, unlike where you'd have, like, a handheld car-mounted Garmin GPS that's just using strictly satellite.
MR. LALLY: Now from your review of that data, when that Waze search is conducted at approximately 12:20 a.m., where is Mr. O'Keefe physically located at that time?
MR. GUARINO: The vehicle — or whatever they're in — is by 138 D Street. They had already passed Cedarcrest Road.
MR. LALLY: And from review of that native location data, what time does the phone arrive in the area of 34 Fairview Road?
MR. GUARINO: 12:24 a.m.
MR. LALLY: Now the next entry as far as the location data — when is that and where is it indicating that the phone is?
MR. GUARINO: It shows me it's there the entire night, right in between 32 and 34 Fairview — so that intersection of those two residences.
MR. LALLY: If you know, where is that in relation to where Mr. O'Keefe was found just after 6:00 a.m. in the morning?
MR. GUARINO: I was only going by the photos that Sergeant Goode had taken and from the Canton PD cruiser cam, but that area would be within 3 feet, give or take, of the area where the GPS signals all plot for the rest of the night.
MR. LALLY: Now, Trooper Guarino, you testified the other day to a tool that you use called Magnet AXIOM — is that correct?
MR. GUARINO: Yes.
MR. LALLY: And with regard to the location data and the tool of Magnet AXIOM, what, if anything, can you tell the jury as far as how that works and how accurate it is?
MR. GUARINO: So, like Cellebrite, AXIOM will also show the native locations in an iPhone. They're able to display the range of accuracy in meters, and then also the speed of the phone in meters per second.
MR. LALLY: And were you able to ascertain from using the AXIOM tool and the location data for Mr. O'Keefe's phone as far as its speed in meters per second at 12:25:36 a.m.?
MR. GUARINO: I was. I don't remember it off the top of my head.
MR. LALLY: With the court's permission, may the trooper refer to his report for the numbers?
JUDGE CANNONE: Go ahead.
MR. GUARINO: It's 6.346 meters per second and a 16.75 meter level of accuracy — so at about 54 feet measure of accuracy.
MR. LALLY: Now, sir, if you could, just based on your training, experience, and familiarity with this AXIOM tool — for the record, that's AXIOM — is that correct?
MR. GUARINO: Yes, that is correct.
MR. LALLY: So as far as that degree of certainty or accuracy with regard to the measurement, can you speak a little bit about that and explain that to the jury — how that works and what that means?
MR. GUARINO: Yeah, so, you know, as I said, the iPhone tries to use multiple things to get you the best area of location where you're at. I can tell from personal experience that being at 34 Fairview — it's at the... Fairview, where 34 is on Fairview — it's at the bottom of a hill, and it's also at the bottom of Cedarcrest where they sort of intersect. That area there has many hills, so the GPS signal can weaken due to natural landscape, buildings, weather, multiple factors.
MR. LALLY: And as far as the degree of accuracy, what, if anything, does that tell you in regards to the location of the phone in reference to that degree of accuracy?
MR. GUARINO: So it plots a point where it believes you are, and then the degree of accuracy says you could be in this bubble. But if it's way outside or way far away, it's all going to show by how well the signal strength is to the satellite. So like I said, if it's a poor signal it's going to blow out — it's going to show you could be in this giant circle. But as it gets better, it's going to shrink back down — it's going to say, "No, you're right about here."
MR. LALLY: And to that point — to elucidate that point that you were just speaking on — we'll get to this more in depth in a second, but at some point in 2023, did you go to 34 Fairview Road to conduct some GPS mapping?
MR. GUARINO: Yes, I did.
MR. LALLY: And when you were in that area of 34 Fairview Road, what, if anything, did you observe with reference to satellite connection, cell phone connection, things of that nature — as far as the strength of the signal?
MR. GUARINO: So on my way to work I actually drive Fairview quite often. And being there in person with my phone, I'll go from four or five bars of service, and when I'm there it's one or two. So that tells me the strength of signal there is not great.
MR. LALLY: Now, turning back to the location data from Mr. O'Keefe's phone — you testified that at 12:25:36 a.m. it has a certain accuracy and was traveling a certain speed, correct?
MR. GUARINO: Yes.
MR. LALLY: Now what, if any, speed is recorded in this location data between that 12:25 a.m. and 6:15:36 a.m.?
MR. GUARINO: Your Honor, may I just —
JUDGE CANNONE: Thank you.
MR. GUARINO: What time frame exactly are you looking for?
MR. LALLY: What I'm asking is, what, if any, speed was recorded by the location data between that first 12:25:36 a.m. and 6:15:36 a.m.?
MR. GUARINO: Oh, I'm sorry. I thought you were asking for before that. There's no real speed registered until the phone is found the next morning.
MR. LALLY: And so that would be at the 6:15:36 a.m. time frame, is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And what speed is recorded at that time?
MR. GUARINO: At 6:15:36 in the morning, it shows 0.24 meters per second for speed, and then with an accuracy rating of 7.58 meters, which is 24 feet.
MR. LALLY: Thanks. Now, sir, if I could turn your attention to May 8, 2023 — where did you go with relation to this investigation on that date?
MR. GUARINO: I went to 34 Fairview.
MR. LALLY: And who, if anyone, went with you?
MR. GUARINO: Trooper Proctor.
MR. LALLY: Now what was the purpose of going to 34 Fairview Road on that date in May of 2023?
MR. GUARINO: We wanted to take measurements of where Mr. O'Keefe's body was found, and then basically a diagonal straight line to the door — the distance that would be.
MR. LALLY: And what, if any, tools did you bring with you, and what, if anything, did you use in the course of this analysis on this day?
MR. GUARINO: So we loaded the GPS points into a program that the [unintelligible] uses called [unintelligible] — it's a GPS mapping program that you can view through an app. That way I was able to see exactly where I was via the app. We also used one of the big long tape measures — that's in like the big thing — that would get us, you know, from where we believed his body was to the front door.
MR. LALLY: And from that, as far as the determination of where Mr. O'Keefe's body was located, what, if anything, did you use to determine that?
MR. GUARINO: As I said before, the photos and video from Sergeant Goode of CPD and the CPD cruiser cam video.
MR. LALLY: So the cruiser cam video — that from Officer Saraf's cruiser — is that correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: The one that shows where Mr. O'Keefe's body is when Officer Saraf arrived, correct?
MR. GUARINO: That is correct.
MR. LALLY: Now with regard to those particular GPS points, what time frame did you start as far as your mapping was concerned?
MR. GUARINO: We took — well, we mapped the entire route. So at the Waterfall Bar and then from their drive on [unintelligible] down to 34 Fairview.
MR. LALLY: And as far as these locations, how are they measured — what kind of measurements were you using in order to plot those points?
MR. GUARINO: We loaded into Google Maps and were able to show it with the KMZ file to show exactly where he went.
MR. LALLY: And so what I'm asking is, as far as the GPS locations that you were recording — were those measured as longitude, latitude? Is that how they were measured?
MR. GUARINO: Yes. I'm sorry — yeah, latitude.
MR. LALLY: And you started with Mr. O'Keefe at the Waterfall Bar in Canton — what time was that, if you know?
MR. GUARINO: — 12:12 a.m. was the last point.
MR. LALLY: And then that time frame when Mr. O'Keefe's native locations are putting him in the area of 34 Fairview Road, when was that first time — the time it arrives?
MR. GUARINO: Yes, about 12:24 — I forget the seconds, but 12:24 a.m.
MR. LALLY: Now eventually when you had all of these points, as far as the direction of travel, location data, all of those things — what if anything were you then able to do with those GPS locations?
MR. GUARINO: I cross-referenced them with his health data and also mapped it out to see exactly where he would be.
MR. LALLY: Now with respect to the data that you were able to recover, if you could describe to the jury sort of the path of travel starting with the Waterfall, as far as where Mr. O'Keefe's phone was, where it traveled, and where you noted it at various time points along that sequence.
MR. GUARINO: Okay. So as I said, 12:12 it's at the Waterfall Bar. Then there's a 7-minute break in location data. When the phone comes back up with location data at 12:19, as I said he's by Dedham Street and Cedarcrest Road, at 138 Dedham Street right around there. 12:20 a.m., 34 Fairview is put into Waze. He then proceeds down Dedham Street, takes a left onto Oakdale Road, that goes to the end of Oakdale, takes a left onto Maple Croft. As he's going by Maple Croft and Pine Cone Road, right around 12:22 and 14 seconds, was a data point listed that he's ascending/descending the stairs. So he's over a half mile away from 34 Fairview at this point. They go down Maple Croft, take a right onto Cedarcrest, all the way down Cedarcrest.
MR. GUARINO: They do not turn onto the Fairview Road — it goes by Fairview, does a three-point turn or turns around somehow, and then goes back to Fairview and takes a right, where it finally stops between 34 and 32.
MR. LALLY: So at the time that that health data is being recorded, again you cross-referenced the GPS data with the health data from Mr. O'Keefe's phone, correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And so at the time that the phone has that recording in the health data — descending — and is it ascending or descending, or how does that read in the health data?
MR. GUARINO: I have my report and that's what I copied from it. It's ascending/descending state.
MR. LALLY: And at that point in time, cross-referencing that health data with the GPS location, where physically is Mr. O'Keefe's phone at that particular time frame?
MR. GUARINO: Maple Croft by Pine Cone Road, right at that intersection.
MR. LALLY: And has Mr. O'Keefe's phone arrived or been in the area — as far as the GPS specifically — of 34 Fairview Road at that time?
MR. GUARINO: No, not at all.
MR. LALLY: And so from the GPS locations that you observed of the defendant's phone, initially the phone passes by Fairview Road and then reverses direction to come back, correct?
MR. GUARINO: Yes, that's correct.
MR. LALLY: And then as far as between 12:25 a.m. and 6:15 a.m., there's no movement of that phone, correct? What if any movement did you observe following 12:25 a.m. until the period of 6:15?
MR. GUARINO: None, until it was found at 6:15.
MR. LALLY: Now you mentioned that you took a tool and you did some measurements as well, is that correct?
MR. GUARINO: Yes.
MR. LALLY: And were able to ascertain some GPS locations for where Mr. O'Keefe's body was found?
MR. GUARINO: Yes.
MR. LALLY: And what if any — excuse me — the accuracy of those GPS measurements and latitude and longitude, what was the accuracy of that?
MR. GUARINO: So — can I read the exact?
MR. LALLY: All right.
MR. GUARINO: So from 12:25 and 30 seconds to about 12:35 and 36 seconds — the GPS accuracy is tight on them for the first few seconds and then blows out, encompasses pretty much the neighborhood: 34 Fairview, 32, 31. And I'll read the exact: at 12:25 and 30 seconds it has a 33-meter degree of accuracy, which is about 100 feet. That area encompasses 32, 34, and 31 Fairview. 12:25:31 — 200-foot measure of accuracy — that hits 31, 32, 34 Fairview, basically all the houses around. At 32 seconds it shrinks back down to 95-foot level of accuracy, hitting 32, 34 Fairview and the front yard of 31. At 33 seconds it's 88 feet, again shrinking back in as the signal gets better, covering 32, 34 Fairview. 72 feet at 34 seconds, 59 feet at 35 seconds, and then 52 feet at 36 seconds.
MR. GUARINO: So as I said, signal weakens, it blows out, and then as signal gets stronger it shrinks back in. The GPS coordinates themselves are all still right where Mr. O'Keefe's body was found.
MR. LALLY: And so as far as — if I can take it back just for a second — the initial GPS coordinates that you marked as far as where Mr. O'Keefe's body was found, how accurate was that measurement as far as itself, where it was, from what we had and then where we marked from?
MR. GUARINO: We believe we were within about 3 feet, because standing there, even with the app it's not perfect — I'm not getting a direct reading saying that I'm right on it. So we believe we're within about 3 feet of exactly where he was found.
MR. LALLY: And from that air distance of within three feet of where Mr. O'Keefe's body was found, how far was that — or how far did you measure that to be — from the front door of 34 Fairview Road?
MR. GUARINO: In a direct straight line to the front door, 72 feet, not accounting for the stairs.
MR. LALLY: Now from your review of that data that you were talking about, from that 12:35 — 12:25 and 30 seconds, excuse me — through 12:25:36 seconds, when it fluctuates — what time period of that, or what time period of any of the time that you observed, is it possible that John O'Keefe was actually anywhere near 34 Fairview Road, the house? DEFENSE: Objection.
JUDGE CANNONE: Rephrase. Within those fluctuating circles of GPS data that you were talking about, what time period did those encompass the actual inside of the residence of 34 Fairview Road?
MR. GUARINO: It's about 3 seconds where it actually encompasses the inside of Fairview. That fourth second it's right on the edge of the corner of the house, and then the fifth and sixth seconds are just showing the front yard. And that time period as far as those GPS data from those circles — with reference to the following time periods after this — what if any, based on your training and experience, what if any opinions were you able to draw from that data? So he would have to go from the GPS point that's listed — it would take him a second and a half to get to the house and then a second and a half back to where his body was found, where his phone was underneath him.
MR. GUARINO: That — he'd have to go about 48 feet per second when I did a velocity calculation, which is about 32 mph — a second to the house, a second back. There were no GPS points ever showing inside the home, the backyard of the home. There's no lat/long listed. It's just the degree of accuracy from the GPS signal.
MR. LALLY: So 72 feet from where Mr. O'Keefe's body was found to the front door of 34 Fairview Road — in order for him to be inside of 34 Fairview Road during any of those measured time frames, he would have to travel 72 feet and 1 — DEFENSE: Objection.
JUDGE CANNONE: Sustained. DEFENSE: Objection. Sustained.
MR. LALLY: Sir, again, if I could ask you — from Mr. O'Keefe's health data, as far as his specific physical location at the time that it indicates ascending and descending, how far away from 34 Fairview Road was it when it registered that?
MR. GUARINO: It's over a half mile away.
MR. LALLY: So Maple Croft to Pine Cone Road — in your opinion, sir, at any point in time from the data that you reviewed, did Mr. O'Keefe enter 34 Fairview Road?
JUDGE CANNONE: I'll sustain the objection.
MR. LALLY: May I proceed?
JUDGE CANNONE: Yes.
MR. LALLY: I'm showing you a series of documents. Can you review those and look up when you're finished?
MR. GUARINO: Okay.
MR. LALLY: You recognize those, sir?
MR. GUARINO: Yes.
MR. LALLY: And what do you recognize those to be?
MR. GUARINO: These are the plotted points I did through Google Earth — the maps — and then through LexisNexis TRACK system, the GPS range and coordinates.
MR. LALLY: And the LexisNexis TRACK system, if you could explain just a bit to the jury as far as what that is and how it's used to create these documents.
MR. GUARINO: Before using it — it's similar to that [unintelligible] program I used. It's a desktop-based GPS program. You put the points in and then it will map them out and create a KMZ file for you so you can load into Google Earth.
MR. LALLY: Yes, I'm okay. Thank you. [Exhibit 63 — unintelligible exchange, exhibit handling]
JUDGE CANNONE: Yes.
MR. LALLY: Miss Gilman, if you could take that down. [unintelligible]
JUDGE CANNONE: Yes — in fact, Trooper, if you're more comfortable standing for some of your testimony, you certainly can.
MR. GUARINO: Thank you. [unintelligible]
MR. LALLY: Now, Trooper, there should be a laser pointer up on the stand before you. If you could — first of all, let me just ask you — you recognize what's up on the screen now as the next exhibit?
MR. GUARINO: Yes.
MR. LALLY: And again, if you could just explain to the jury sort of what we're looking at in this slide, and then using that laser pointer, if you could direct the jury's attention to what significance you have in this particular —
MR. GUARINO: So I took an overview of the town of Canton. So this here is the GPS route. And then down over — I can barely see. Let me just look on the map here. It's not much better. The Waterfall Bar is right — I can't really tell, honestly, from this. But it's on Washington Street — that's it, it's down here. I'm sorry. That's why I included an overview of everything, so you could see the full range from the time period with those GPS locations.
MR. LALLY: If I may — raise your voice. I don't know if this is going to work any better, but if I could ask — if we could turn the lights back on just so the witness can see, and then, with the Court's permission, I think the map is still viewable to the jury, and now the witness can actually see the exhibit — Can everybody see it? So again, Trooper, sorry — now with the exhibit visible before you, you could just indicate again what we're looking at?
MR. GUARINO: Yep. So when you zoomed in it actually closed it out, but it's down over here is the Waterfall Bar — there's a couple of points there listed — and then right around here is when the GPS tracks go and their route once Waze is activated, down to 34 Fairview. There is a zoomed-in version of by Fairview.
MR. LALLY: Mr. Woll, if I could have the next slide. So what are we looking at in this slide?
MR. GUARINO: So this is the track. This one shows the 12:22 and 1:42 GPS point, where — right here where the little arrow is — that's exactly where they were when the phone was registering the ascending and descending stairs as listed, and Cellebrite —
MR. LALLY: Jury, where that point is in relation to where 34 Fairview Road is.
MR. GUARINO: Yes, so this is where they were with the ascending and descending stairs. They would continue down through this little piece here, take the right onto Cedarcrest, continue down Cedarcrest, missing Fairview right here, and then turn back around and then come to the house.
MR. LALLY: If I can have the next slide. And, Trooper, what are we looking at in this slide specifically? If you could explain to the jury as far as the blue circle — if you could look this way, please — attached to the LexisNexis tracks, if you can explain to the jury what that is and what that signifies.
MR. GUARINO: Yes, so as I said, we loaded this in through LexisNexis and it gave us the GPS points for the route. The point is 348 — I just wanted to double-check — yeah, 348 is at 12:25 and 30 seconds. The blue circle is the estimated range, so how well the signal for the GPS is, and 34 Fairview is right pretty much by that.
MR. LALLY: Yep, there we go. Is this essentially the same image, a little bit closer, without the graphic, as far as the LexisNexis?
MR. GUARINO: That's correct. This is 34 Fairview right here, 32, and then again this is where all the points are for the duration.
MR. LALLY: As far as the blue circle that's up on the screen, what does that represent as far as this particular point in time — GPS point 348 at 12:25 and 30 seconds?
MR. GUARINO: Yes. This is, as I said before, the range of accuracy due to satellite strength. So as I said, it blows out as it loses strength and then will come back in as it gets better signal.
MR. LALLY: Next. Again, Trooper, what's up on the screen — what are we looking at, as far as 12:25:31?
MR. GUARINO: Same area, where 348 is. This is point 351. Again, as you can see, strength of signal blows out, encompasses almost the whole neighborhood — all the houses around.
MR. LALLY: And if I could have the next slide. Again, this is the same GPS point of 351 — number 351 — at 12:25 and 31 seconds?
MR. GUARINO: Yes, it is. And if you could again just explain to the jury what we're looking at. Yeah, same thing, just the degree of accuracy and the strength of satellite signal to O'Keefe's phone.
MR. LALLY: Again, sir, you can explain to the jury what we're looking at in this slide, what time frame we're talking about?
MR. GUARINO: This is 349, at 32 seconds. Again, latitude and longitude, they're all right in the same area. And that's that.
MR. LALLY: Next slide. Again, Trooper, is this the same GPS plotting point in the same time frame of 12:25:32?
MR. GUARINO: Yes, it is. And again, if you could explain to the jury what we're looking at — and this in particular in relation to the earlier slides with reference to the accuracy. So again, the accuracy blew out as it lost signal and now it's shrinking back in as accuracy gets better.
MR. LALLY: If I could have the next slide. And, sir, what GPS point or what time frame are we looking at in this particular?
MR. GUARINO: This is 12:25 and 33 seconds. Again, same area, lat/long, right in the yard at 34 Fairview.
MR. LALLY: I'd like to back it out to the next slide. Trooper, is this the same GPS point, number 348, at 12:25 and 33 seconds?
MR. GUARINO: That's correct. Again, you could explain as far as the accuracy and what we're looking at — so I believe they actually wasn't that much of a drop-off, yeah. So went from 88 feet to 72 feet, so the circle still doesn't look like it really shrank much.
MR. LALLY: The next slide, please. And again, sir, for what time frame and what GPS point are we looking at in this one?
MR. GUARINO: This is 12:25 and 34 seconds. Again, same thing, right there, the corner of 34 Fairview and 32 Fairview.
MR. LALLY: If I can have the next slide, please. This is the same GPS point, number 350, 12:25 and 34 seconds — is that correct?
MR. GUARINO: Correct. And again, using that laser pointer, direct — So, 34 Fairview here. As I said, this point here — this is the last one where it sort of cuts out the little corner of the house, but everything's still showing directly. This is where it's believed to be.
MR. LALLY: If I could have the next slide. What GPS point and what time are we looking at in this one?
MR. GUARINO: This one's 35 seconds, 12:25:35. Same thing again. GPS point still saying it's right there where his body was. But again, it dropped from 72 feet back down to 9 feet, so it's going to show the outside only of the house — signal strengthening at that point.
MR. LALLY: Is that correct?
MR. GUARINO: That is correct.
MR. LALLY: Get out the next slide. And again, so — same GPS point, number 346, in the same time at 12:25:35 — is that correct?
MR. GUARINO: That is correct.
MR. LALLY: If I could have the next slide. Mr. Woll, with regards to this — what GPS point is being depicted and what time frame are we looking at?
MR. GUARINO: This is GPS point number 345, and it's 12:25 and 36 seconds. Again, showing that the signal strength has grown and gotten better.
MR. LALLY: As far as growing and getting better — what accuracy, or what degree of accuracy in feet, are we looking at at this?
MR. GUARINO: This is within 52 feet.
MR. LALLY: Lastly, from this group, the next slide. Again, sir, this is the same as the previous slide — GPS point number 345, 12:25:36 seconds?
MR. GUARINO: That's correct. And again, if you could, using the laser pointer, just illustrate to the jury what we're looking at. As I said, there aren't any plotted points anywhere other than right in this area for the rest of the night. This is where it stays, and there are varying degrees of accuracy, but there's nothing ever showing it anywhere else in that neighborhood.
MR. LALLY: Okay, Trooper. Yes, thank you. You have that last [exhibit]?
MR. GUARINO: I just gave it back.
MR. LALLY: If you could take a look at that — look up when you finish.
MR. GUARINO: Yes.
MR. LALLY: You recognize that, sir?
MR. GUARINO: Yes. This is a second map I created with the Cellebrite locations from their native locations. The previous one was for Magnet AXIOM, so I used both programs to map it.
MR. LALLY: Why did you use both programs, sir?
MR. GUARINO: As I said, Magnet AXIOM showed movement and degree of accuracy, where Cellebrite doesn't — it just gives you the native locations. I used two programs so I can corroborate what I'm seeing in one is the same as the other, because if not, then I need to find out why.
MR. LALLY: And as far as the information from one program to the other program, were they corroborative of each other?
MR. GUARINO: Yes.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: To introduce. court: No objection. May I return to the witness?
JUDGE CANNONE: Yes.
MR. LALLY: May I publish to the jury?
JUDGE CANNONE: Yes.
MR. LALLY: With the lights on still, I think so. Trooper, starting with the first page that you have before you — first of all, you recognize what's up on the screen as the first page of that next exhibit?
MR. GUARINO: Yes, sir.
MR. LALLY: And again, if you could, using the laser pointer you have before you, direct the jury's attention to what, if anything, of significance you observe in this first page of this next exhibit.
MR. GUARINO: Yes. So again, this is from the Waze app — the track from 34 Fairview down Cedarcrest, again returning back here. So that's just the bottom half. I just wanted to get a closer view of where the GPS plots were from Cellebrite.
MR. LALLY: And the next slide is? And again, sir, if you could explain to the jury what we're looking at.
MR. GUARINO: So the purple dots are the GPS points, and the route taken — as I said — goes up to, I believe that's 51 — Fairview, excuse me — Cedarcrest, and then reverses back, and then this is the final point right here. 34 Fairview right here — there's a little yellow push pin on it.
MR. LALLY: And again, I'm sorry — just from the timing of the plotting of the points of the purple dots that you have there — using the laser pointer, direct the jury's attention to the path that the phone takes in reference. If I can ask you first — if you could just illustrate to the jury this particular — where is 34 Fairview?
MR. GUARINO: Right here.
MR. LALLY: And then if I could ask you, with the laser pointer, to direct the jury's attention to — in sequence — how it travels and arrives at that location.
MR. GUARINO: As shown, goes down Cedarcrest, misses Fairview, goes up to here by the house with the pool, turns around, goes back, takes a right onto Fairview, and then stops ultimately right in between 34 and 32 Fairview — there's like a flag pole and a fire hydrant right there.
MR. LALLY: Next. And, Trooper, directing your attention to this slide — what are we looking at?
MR. GUARINO: Again, I cross-referenced it with the points. This is Maple — excuse me — Pine Cone Road, and then Maple Croft intersects here. And this is the ascending and descending stairs point in his phone. Doing a Google Earth elevation check — there's about a 20-foot dip, and then it goes up, and then as you go down Cedarcrest, the hill is about 50-foot elevation change again. So it's pretty significant.
MR. LALLY: And so — I'm sorry, sir — as far as the elevation change that you're talking about, how is that measured, and where is that in reference to what's depicted up here?
MR. GUARINO: So again, like I said, in this area here there's about a 20-foot drop, and then as you go down Cedarcrest, that hill, it's about 50 feet. This spot here is the ascending and descending stairs. So as I said before, he doesn't have an Apple Watch on, so it's not collecting that great health data — it's still acting as a pedometer. So again, whatever movement he's doing is triggering something in the phone as he's ascending and descending these hills essentially. It could be tricking the phone into thinking it's stairs.
MR. LALLY: Can we have the next slide? What are we looking at in this one?
MR. GUARINO: Uh, this timestamp is 12:19:32. That's when the phone initially starts creating the GPS points, uh, before Waze is activated, uh, with 34 Fairview searched. So this looks to be the time Waze is actually opened up.
MR. LALLY: And so from the purple dots that are depicted on the screen, as far as where is O'Keefe's phone at 12:19 a.m., in reference to 34 Fairview?
MR. GUARINO: 12:19 is right here. 34 Fairview is down all the way here. You can't really see, but it's right in the bottom corner.
MR. LALLY: And the next— this is the same map, but just minus the tracks?
MR. GUARINO: Uh, the tracks, uh, graphic.
MR. LALLY: I'm sorry, I lost track of what page we're on. Is there any other pages in that exhibit?
MR. GUARINO: No, that's the last one.
MR. LALLY: May I approach to retrieve?
JUDGE CANNONE: Yes. May we approach? Okay. We're going to take our morning break. You, of course, have to stick around, but you can file out when the jury does. So, jurors, the lawyers and I have something that we have to do, so it'll be a little bit longer. I hear it's nice and cool back in the jury deliberation room, so we're going to take a half an hour, 45-minute break here.
COURT OFFICER: At this time, court is back in session. You may be seated.
JUDGE CANNONE: All right. So, Mr. Yannetti, did that give you enough time?
MR. YANNETTI: I have enough.
JUDGE CANNONE: Okay. All right. So, Ms. McLaughlin, why don't I hear you just briefly? Um, if you could frame this— or Mr. Lally, whoever wants to.
MS. MCLAUGHLIN: Yes. The Commonwealth is moving to introduce a Google search the defendant conducted at 1:27 p.m. on January 29th, 2022. Uh, the Commonwealth would argue that the probative value of this Google search outweighs any prejudice to the defendant. The search in question is at— —1:27 p.m. Before the defendant had spoken to law enforcement, she conducted a search for DUI attorneys. Uh, the Commonwealth thinks that this is appropriate for the jury to hear, as it rebuts the defense the defendant has laid out— not that, um, she did not intend to commit John O'Keefe— the defense has been that the defendant essentially had— what's been represented in opening court was framed that she had, um, no intent or opportunity to commit these crimes. Uh, further, that she was not intoxicated at the time.
MS. MCLAUGHLIN: So the Commonwealth feels that the probative value significantly outweighs the prejudicial value. It goes to her state of mind at the time that the search was conducted. Further, it also rebuts that there was, um, any impropriety in the police investigation, or that, as the defense has put it, that the police did not search any— or investigate any other potential culprits. Um, it also would go to the defendant's consciousness of guilt at that time. This statement is before she, um, voluntarily gave an interview with law enforcement. It goes to her state of mind prior to that interview.
MS. MCLAUGHLIN: Um, and so for all those reasons, the Commonwealth would suggest that that Google search is appropriate, and it's not a typical case where it's an invocation of counsel, um, where law— —enforcement had not engaged her. And it goes to her state of mind at that time, prior to any police involvement. And further, to rebut that there was any impropriety in the police investigation, or that they should have investigated anyone else.
JUDGE CANNONE: All right. And I appreciate Mr. Lally bringing this to our attention, to give us time to look at it. Ms. McLaughlin, I appreciate that you provided a very strong limiting instruction proposal. I'll hear you, Mr. Yannetti.
MR. YANNETTI: Thank you. Um, you asked that I produce proof of the phone call from Michael Proctor to—
JUDGE CANNONE: Oh, I didn't say proof. No. I asked if that was coming into evidence.
MR. YANNETTI: Okay, well, I'd like this marked for identification for the purpose of this document.
JUDGE CANNONE: If I— sure. Okay. So let's have it marked for ID before I hear you any further. So, Madame court reporter needs to mark it for identification. All right. And if I may have that— thank you very much. Just give me a minute, Mr. Yannetti. All right. So this is just that a call occurred, right? That a call was made from Michael Proctor's personal cell phone number— you can see the last four digits there—
MR. YANNETTI: —to my client at 1:19 p.m. on January 29th, approximately 8 minutes before she calls to investigate a potential DUI attorney.
JUDGE CANNONE: Okay. So focus on the law for me, and tell me why I should exclude this.
MR. YANNETTI: Of course. Yes. With regard to, uh, the cases that the Commonwealth has cited— I think the court has seen one of them is an unpublished opinion, the other is a homicide case— they couldn't be more distinguishable from this case. Uh, with regard to the unpublished opinion, that appears to have been a gun charge where the defendant in that case did a search for a 9mm handgun on his cell phone. He did not ask Google— or searching Google for a handgun attorney. Uh, he made a specific inculpatory search, uh, that, uh, the court ruled, uh, was relevant and was not outweighed by the danger of unfair prejudice. Um, in this case, what we have is a person being contacted by the police— —and then doing what a citizen has every right to do, which is to look for an attorney for representation.
MR. YANNETTI: There's zero probative value to that, other than she's presumed to be innocent and she's seeking an attorney to defend that presumption of innocence. That's it. There's zero probative value, but there is extreme and unfair prejudice in this case. You want to— the limiting instruction that the Commonwealth has, uh, provided asks this court to instruct the jury whether her action in doing an internet search for an attorney indicates feelings of guilt by the defendant. I can't even believe that argument.
JUDGE CANNONE: So, so, let's just focus on the law. I'm trying to— you run— so what I'm going to do then is I'm going to stop you. So, on the balancing act that I have to do, I find that the probative value is— is outweighed by the prejudicial. All right. So, uh, I'm not going to allow it in, Mr. Lally, in your case in chief. Now, if, uh, you feel that through this witness or through any other witness, Mr. Lally, that it then is admissible, I just ask that you come to sidebar beforehand.
MR. LALLY: Absolutely. All right. Okay.
JUDGE CANNONE: All right. Let's bring Trooper Guarino back in, please.
COURT OFFICER: Yes, please.
JUDGE CANNONE: Trooper, if you have a bad back and you need to stand, just stand at any time.
MR. GUARINO: Thank you, Your Honor. Okay.
COURT OFFICER: All rise for the jury.
JUDGE CANNONE: You may be seated.
MR. LALLY: Thank you. No further questions for this witness.
JUDGE CANNONE: All right. Trooper, thank you. [unintelligible] Um, Mr. Lally, you left your material.