Commonwealth v. Read — Trial ArchiveMichael Lank — Redirect/Recross
91 linesREDIRECT-EXAMINATION BY MR. LALLY:
MR. LALLY: Just briefly, sir. With regard to the incident you were asked about from August of 2002, can you explain in your own words what happened?
MR. LANK: So I had left the establishment. Centerfield is what it was called at the time. And the owner had asked me if I could drive a patron home who had had too much to drink. So I obliged. I walked across the street to the parking lot, got in my truck with the patrol. And, as I was pulling out, that's when Mr. Albert approached my truck and told me how he had been in an altercation earlier in the evening with Mark LoPilato and that Mark had made threats towards him and his family that he was going to harm his family. They had a young child at the time. Mr. Albert was concerned and asking me what he should do. As I was telling him what I think he should do, he said something to the effect of, oh, no, here they come. And I observed multiple men walking down the sidewalk in our direction. At this point, I got out of my truck, approached the group and pleaded with them. I said, guys, not tonight. He's by himself. He's with his wife -- excuse me -- girlfriend. There is not going to be a fight tonight, and I did my best to defuse the situation. But they weren't having it. They made several attempts to push past me. Ultimately, a wrestling match ensued. Mr. LoPilato at one point said, I know who you are. I don't give a fuck, and asked me what I was going to do about it. A wrestling match ensued. I was punched. And, at that point, I defended myself and did engage in a physical altercation with Mark.
MR. LALLY: Now, you were asked about sort of timing about reports. You didn't write a report until a couple of days later; is that correct?
MR. LALLY: And why was that?
MR. LANK: I had spoken to the shift supervisor that night, and I asked him if he wanted me to return and generate a report at that point. And he advised me that I could do it the next time I was at work, which was a couple of days later.
MR. LALLY: And, as far as the police responding to that parking lot that night, how were they notified, if you know?
MR. LANK: I had yelled across the street when the group was trying to push its way past me. I yelled across the street to -- the bartender and the owner had made their way out onto the sidewalk/street area. I yelled across the street and I said, call the police, call the police. And they ultimately called 911.
MR. LALLY: Now, what, if any, relevance or factor did any of that have in your minds in regard to your response and interviews or anything that you did on January 29th, 2022?
MR. LALLY: And, in fact, that involved a Christopher Albert in 2002, correct?
MR. LALLY: And you were at Brian Albert's residence in 2022, correct?
MR. LALLY: And, just to be clear, just because their last name is Albert, they are separate people. You have separate relationships with each of those persons, correct?
MR. LALLY: Now, you grew up in the town. You work in the town. Fair to say you go to calls regarding people that you know?
MR. LALLY: Whether that be witnesses, people that you arrest, any of the like, correct?
MR. LALLY: Now, with regard to the questions that you were asked about Mr. O'Keefe, just to be clear, you never laid eyes on Mr. O'Keefe's body at any point in time on January 29th or thereafter, correct?
MR. LALLY: You were asked some questions on the cruiser cam video whether you were on the phone. You indicated that you could make an educated guess as to who you were on the phone with. Who would that be?
MR. LALLY: And so at the time that you're on the phone from that video, Lieutenant Gallagher was not on scene yet, correct?
MR. LALLY: Now, with respect to the weather on that day, you talked a bit about sort of the weather as you were on scene. During the time that you were on scene, did it essentially persist in the same manner?
MR. LALLY: And then later on that day, what, if any, change occurred with regard to the weather?
MR. LANK: As I recall, while we were there, it stayed the same. If anything, it might have gotten even worse.
MR. LALLY: And, from your memory of that day, did that continue throughout the course of the day while you were working?
MR. LALLY: Now, with regard to the house at 34 Fairview Road, each of those occasions, if you could, with respect to the three occasions that you went inside the house to speak to people, where were those people within the house?
MR. LANK: The first time I went in, Brian Albert and Nicole Albert were located, I believe, on the stairs or sitting possibly at some point on the stairs. Jen McCabe was to my right. The second time I went back in was also through the front door, and it was the same positioning, except this time Matt McCabe was present, and Matt was also to my right.
MR. LALLY: And then on the third occasion when yourself and Lieutenant Gallagher came back to speak to Ms. McCabe further?
MR. LANK: We went in through the door to the right. So it's to the right of the main door. We went in through that door and stayed in like the dining/kitchen area. And that's where I spoke with Jennifer.
MR. LALLY: And that third time that you went back and you spoke with Jennifer, where was Brian Albert, Nicole Albert, Matthew McCabe, any of those parties that were there before, if you know?
MR. LANK: They were present. I actually don't recall if Matthew McCabe was there the third time. Brian and Nicole were definitely there. I believe they were in the general vicinity, but I couldn't tell you exactly where they were.
MR. LALLY: And the same thing when you went back on that third occasion? What, if anything, did you note as far as the interior of the house? Anything askew? Anything out of place?
MR. LALLY: Nothing further, Your Honor.
MR. JACKSON: May we approach very briefly?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
MR. JACKSON: Your Honor, the Court's order to me, to the defense, was that we were not to get into the specifics of the actual fight, which I closely guarded against and I did not. Mr. Lally just did exactly what the Court ordered me not to do. He said, tell us what happened involving this fight, giving him the detail of how he was punched first. He was attacked first. There was foul language used. There were threats used, and all he did was defend himself. With the Court's permission, I intend to ask three questions: Number one, you just described a situation in which two men assaulted a police officer basically in front of other police officers. They were never convicted of anything. I won't go into it any further, but I'd like to say they were not convicted. Mr. Lally has indicated that they were charged, but I think the other side of that coin is but they weren't convicted. The second thing I'd ask is he made a statement, saying, whoever you are, I'm going to make your life miserable. And that's on the record. He didn't admit or deny it. And then the third thing is simply wrapping it up with this was in furtherance of you coming to Chris Albert's aid.
JUDGE CANNONE: All right. How do you respond, Mr. Lally?
MR. LALLY: So, Your Honor, as it pertains to -- I didn't have any indication. There was no indication that anybody was arrested, charged or anything as it pertains to LoPilatos. So whatever happened with the case is not relevant and germane. As far as what I did with the witness was in response to Mr. Jackson's questions which, understandably on cross-examination, they can be leading. But essentially he led him through a certain narrative that I did not believe to be accurate. And so I asked the witness what his recollection of that narrative is. That has nothing to do with any of the subsequent trial intimidation charges or anything of that like. You know, I think as far as his -- and I'm sorry. I can't recall exactly what your questions were again.
MR. JACKSON: The main thing that I would need the Court's guidance on or alert the Court to is I want to be able to ask him, given the narrative that he just described for Mr. Lally, anybody, anybody, would expect that he would have been charged and convicted. I simply want to be clear they were not convicted of anything which suggests that his narrative is spinning the facts in his favor.
JUDGE CANNONE: So tell me the question again? I don't want five questions. You said there were three questions. I don't want five on the same topic.
MR. JACKSON: Right.
JUDGE CANNONE: What is the first question?
MR. JACKSON: You claimed, in Mr. Lally's questions, you claimed that you were specifically physically assaulted by -- the fact of the matter is they were never convicted of anything having to do with assault on a police officer.
JUDGE CANNONE: What was the second question?
MR. JACKSON: You indicated that they said to you, and I will adopt my language accordingly, I don't give an "F" what we do. You know, I'm going to continue to fight you anyway. On record what was said was he said to them, I don't know who you are, but I'm going to make your life miserable.
JUDGE CANNONE: All right. So let me hear the first question again? I thought the first time he said something like this happened in front of several police officers.
MR. JACKSON: Right. Your claim is that you were assaulted in front of other police officers. They were never convicted of anything having to do with assault on a police officer or anything else.
JUDGE CANNONE: Regarding this incident.
MR. JACKSON: Regarding this incident. Yes.
JUDGE CANNONE: I'm going to allow it, Mr. Lally. And I feel bad. It's the one time he did not really ask any leading questions and all of this came in. So I'll allow the "in front of police," you know. The first time you worded it was the best.
MR. JACKSON: Okay.
JUDGE CANNONE: I don't want you to get into all the details that Mr. Lally -- just in response to Mr. Lally's question.
MR. JACKSON: Right.
JUDGE CANNONE: And the second one was?
MR. JACKSON: You actually said to them, I'm going to make your life miserable.
JUDGE CANNONE: Okay. All right. I'm going to allow it.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Very briefly.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Lieutenant Lank, you indicated that you claimed in your description that you were assaulted by the LoPilato brothers, correct?
MR. JACKSON: The fact is they were never convicted of anything having to do with this case, the case that you're describing; isn't that true?
MR. JACKSON: You also indicated that they made either a threatening comment to you or disparaging comment to you about "I don't give a fuck"; correct?
MR. JACKSON: Isn't it true that what was actually said was you said to them, I don't know who you are, but I'm going to make your life miserable?
MR. JACKSON: All of this incident was in furtherance of you protecting a member of the Albert family when they asked for your help, correct?
MR. JACKSON: Who happened to be an Albert?
MR. JACKSON: Thank you.
JUDGE CANNONE: All right. You are all set.
(Whereupon, the witness is excused.)
JUDGE CANNONE: Let's try to get some testimony from one more witness.
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: Jurors, we will break right at 1:00. Let's see if we can get more testimony in. Who is your next witness?
MR. LALLY: Your Honor, the Commonwealth would call Lieutenant Charles Rae.