Commonwealth v. Read — Trial ArchivePaul Gallagher - Redirect/Recross
289 linesJUDGE CANNONE: All right, Mr. Brennan.
MR. BRENNAN: ADA
PARENTHETICAL: [brown]
MR. BRENNAN: : May I?
PARENTHETICAL: [brown]
MR. BRENNAN: : Lieutenant Gallagher, you mentioned that one of your colleagues who lived on Fairview Road had an Owl camera.
PARENTHETICAL: [brown]
MR. BRENNAN: : That day, or that morning when you went to Fairview and looked around where you were directed — Mr. O'Keefe's body was — were you aware that that gentleman had a camera?
PARENTHETICAL: [brown]
MR. BRENNAN: : You shared with us that you had familiarity with the angle of that camera. Do you have any information ADA
PARENTHETICAL: [brown]
MR. BRENNAN: : Do you know if that camera could even reach the street if you wanted to?
PARENTHETICAL: [brown]
MR. BRENNAN: : Do you have any information that there are applications or different things you can do to the camera to move it remotely? Is there any evidence or information you have?
PARENTHETICAL: [brown]
MR. GALLAGHER: : When you decided not to ask him about the camera, was that based on anything other than your familiarity and knowledge of the angle that camera was set? No. ADA
PARENTHETICAL: [brown]
MR. GALLAGHER: : At any time — has he ever shown you, have you ever seen clips from that camera — were they consistently showing the same area, ADA
PARENTHETICAL: [brown]
MR. BRENNAN: : In your mind, why didn't you go seek footage from that camera?
PARENTHETICAL: [brown]
MR. BRENNAN: : Yes.
PARENTHETICAL: [brown]
MR. BRENNAN: : You said that's a very busy street. Are you familiar with Fairview Road?
PARENTHETICAL: [brown]
MR. BRENNAN: : Is that a road? Is that a public road — a public way in the town of Canton?
PARENTHETICAL: [brown]
MR. GALLAGHER: : or did it change over time?
PARENTHETICAL: [brown]
MR. BRENNAN: : whatsoever that he, or anybody on his behalf, used the phone to change the camera angle?
JUDGE CANNONE: Go right ahead.
MR. BRENNAN: ADA
MR. GALLAGHER: Had an Owl camera. Yes.
MR. BRENNAN: ADA
MR. GALLAGHER: Yes.
MR. BRENNAN: ADA
MR. GALLAGHER: No, I don't.
MR. BRENNAN: ADA
MR. GALLAGHER: I'm not sure.
MR. BRENNAN: ADA
MR. GALLAGHER: No.
MR. GALLAGHER: ADA
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. GALLAGHER: They were the same.
MR. BRENNAN: ADA
MR. GALLAGHER: In my mind?
MR. BRENNAN: ADA
MR. GALLAGHER: Because I knew it wouldn't have captured anything. I also know that they're motion-activated cameras and he didn't have them on the street, because it's a busy street and the batteries would die very quickly if they captured the street.
MR. BRENNAN: ADA
MR. GALLAGHER: Yes.
MR. BRENNAN: ADA
MR. GALLAGHER: Yes.
MR. BRENNAN: As a public way in the town of Canton, do you know who operates and cleans and monitors that road? Who's responsible for that?
MR. GALLAGHER: Yes, the Department of Public Works for the town of Canton.
MR. BRENNAN: You were asked about a claim of a fight. Did any witness ever suggest to you that Mr. O'Keefe had been in a fight?
MR. GALLAGHER: No.
MR. BRENNAN: When you first learned about Mr. O'Keefe, did you get a chance to actually look at his body?
MR. GALLAGHER: No, I did not.
MR. BRENNAN: Did you get a chance to look at his wounds?
MR. GALLAGHER: No, I did not.
MR. BRENNAN: Did you get a chance to examine his clothing and whether there was any trace evidence left behind?
JUDGE CANNONE: I'll allow it.
MR. GALLAGHER: No, I did not.
MR. BRENNAN: Early in an investigation, when investigators have no information, is it common to speculate?
JUDGE CANNONE: Objection. Sustained.
MR. BRENNAN: What is the natural process for an investigator when you start upon a situation and know nothing about what happened?
MR. GALLAGHER: Uh, in this particular case, we came up with scenarios that possibly could have brought John to that spot. Um, and we were focused on trying to find out, and hopefully getting to the hospital. Hopefully the Canton Fire Department and the hospital would save his life and he could tell us how he got to where he was.
MR. BRENNAN: Was that anything beyond the surmise or speculation of detectives, or did that information come from a witness?
MR. GALLAGHER: No, that was — that was us. I guess you would call it spitballing on possibilities.
MR. BRENNAN: Did you ever come across a witness that said that Mr. O'Keefe's injuries were the result of a fight?
MR. GALLAGHER: No, we did not.
MR. BRENNAN: If we could play Exhibit 51, please. I want to ask you some questions about the area you searched where you were directed Mr. O'Keefe was. Stop it there, please. To Gallagher: You did not see where exactly John O'Keefe was when he was found.
MR. GALLAGHER: No, I did not.
MR. BRENNAN: Who directed you to this area?
MR. GALLAGHER: Uh, I was directed twice. Uh, first by Sergeant Goode and then by — Lieutenant — Sergeant Lank, Detective Sergeant Lank.
MR. BRENNAN: You shared with us yesterday. You were looking in that area where you thought John O'Keefe was found.
MR. GALLAGHER: Correct.
MR. BRENNAN: Um, you asked questions about a berm. Is that the separation between the street and the yard?
MR. GALLAGHER: Yes, it is.
MR. BRENNAN: Did you clear off a piece of that berm?
MR. GALLAGHER: We did. And the reason was we wanted to see what was there. We didn't know what was there.
MR. BRENNAN: Did you do a search from the flagpole all the way to the street?
MR. GALLAGHER: No.
MR. BRENNAN: Did you do a search of that flagpole across the front yard?
MR. GALLAGHER: No.
MR. BRENNAN: Did you do a search from that flagpole all across the berm all the way down the line?
MR. GALLAGHER: No, it was approximately 15 to 18 in.
MR. BRENNAN: And why such a limited search?
MR. GALLAGHER: Because we had no other reason than it was a medical call at this time.
MR. BRENNAN: Did you see snow in other parts of the yard?
MR. GALLAGHER: Yes, the entire yard was covered.
MR. BRENNAN: And other than Officer Lank's footprints across the front of the yard, no other footprints?
MR. GALLAGHER: There were no other footprints.
MR. BRENNAN: Any other visible signs that anything was moved or dragged across that side or front lawn?
MR. GALLAGHER: No, not at all.
MR. BRENNAN: Any dog prints in the snow?
MR. GALLAGHER: No, not at all.
MR. BRENNAN: You were asked whether you sought a search warrant. Um, is there a difference between a witness and an eyewitness?
MR. GALLAGHER: Yes.
MR. BRENNAN: You were asked questions about people in the home and they were characterized as witnesses. Did you have any information that anybody inside that home was a witness to what happened to Mr. O'Keefe?
MR. GALLAGHER: No.
MR. BRENNAN: Did you have any information when you made these decisions about search warrants? Did you have any information from anybody anywhere that Mr. O'Keefe ever stepped one foot inside that home?
JUDGE CANNONE: I'm going to allow it. Briefly.
MR. BRENNAN: Can we turn the lights on, Mr. Woll?
MR. BRENNAN: Take that down. Thank you. May I?
JUDGE CANNONE: Yes.
MR. GALLAGHER: Standards.
JUDGE CANNONE: Yes.
MR. BRENNAN: And what is that?
MR. GALLAGHER: Uh, probable cause.
MR. BRENNAN: And for us, what does that mean? Probable cause.
MR. GALLAGHER: So, probable cause is a reasonable belief that a crime has been committed or evidence of a crime can be found in a specific location.
MR. BRENNAN: Can you obtain a search warrant if you do not have a reasonable belief that evidence exists somewhere?
MR. GALLAGHER: No, you cannot.
MR. BRENNAN: Is there a process in getting a search warrant? Can you just walk in a home and say, "I have a search warrant," or do you have to do something?
MR. GALLAGHER: Uh, you have to write an affidavit in good faith swearing before the court that all your information is accurate and truthful and present the facts, circumstances, witness statements that would make you believe that there was a reason to violate your Fourth Amendment constitutional right.
MR. BRENNAN: When you walked into Fairview that morning with Sergeant Lank, um, did you have a search warrant?
MR. GALLAGHER: No, I did not.
MR. BRENNAN: Did you have any reason to get a search warrant?
MR. GALLAGHER: No reason at all.
MR. BRENNAN: When you walked in, were you invited?
MR. GALLAGHER: Yes.
MR. BRENNAN: Did anybody prevent you from coming in?
MR. GALLAGHER: No, not at all.
MR. BRENNAN: Did anybody ever ask you to leave?
MR. GALLAGHER: No, not at all.
MR. BRENNAN: When you spoke to Mr. Albert, did he ever discontinue or end the conversation?
MR. GALLAGHER: No.
MR. BRENNAN: Were you doing any favors for anybody that morning?
MR. GALLAGHER: No, of course not.
MR. BRENNAN: If you had probable cause to search anywhere that morning, would you have?
MR. GALLAGHER: Absolutely.
MR. BRENNAN: You were asked questions about memorializing your efforts when you were in the area of Mr. O'Keefe's body, and you were asked about written reports. Are there other ways to memorialize efforts other than writing a report?
MR. GALLAGHER: Yes.
MR. BRENNAN: You videotaped — or you had Sergeant Goode videotape your search?
MR. GALLAGHER: That is correct.
MR. BRENNAN: Who told him to do that?
MR. GALLAGHER: I did.
MR. BRENNAN: Why did you tell him to do that?
MR. GALLAGHER: Because I wanted it in case it ever became an issue. I wasn't familiar with it being used before. I wanted people to understand how effective it was.
MR. BRENNAN: Do you know whether or not the police cars have dash cams?
MR. GALLAGHER: They do. Yes.
MR. BRENNAN: Do you know if any of the police cars had dash cams that day?
MR. GALLAGHER: Three of them did. Yes.
MR. BRENNAN: You mentioned that at some point you learned that Mr. O'Keefe had passed.
MR. GALLAGHER: I'm not sure when we found that out, but yes.
MR. BRENNAN: Is there a statute or a rule when there is a death whether a local county keeps the case or it needs to be transferred?
MR. GALLAGHER: It's transferred. Yes.
MR. BRENNAN: Is there a rule or is that a policy of the Canton Police Department?
MR. GALLAGHER: It's a rule.
MR. BRENNAN: You were asked about the Lexus in the sally port.
MR. GALLAGHER: Correct.
MR. BRENNAN: Do you know exactly what time that Lexus was brought to the sally port?
MR. GALLAGHER: I don't have any personal knowledge of that.
MR. BRENNAN: You were asked about a broken tail light. Um, have or had you reviewed any of the dash cams from the Canton Police Department that day?
MR. GALLAGHER: Um, not that day. No.
MR. BRENNAN: You were asked about cross-contamination with the cups. Um, when you brought the cups to the criminalist, where did you give them to him or her?
MR. GALLAGHER: I carried them down — we walked together. I carried them down to the sally port.
MR. BRENNAN: Did you see anybody using a white rag or a paper towel to dip it in to any of the cups?
MR. GALLAGHER: No.
MR. BRENNAN: Did you see anybody shaking the cups or splashing?
MR. GALLAGHER: No, they were handled very carefully.
MR. BRENNAN: Did you see anything that would cause you concern that there was some type of purposeful or inadvertent contamination or transfer?
MR. GALLAGHER: Absolutely not.
MR. BRENNAN: And you've been trained?
MR. GALLAGHER: Yes.
MR. BRENNAN: Did you see anything during that time that caused you any concern about the potential corruption of evidence?
MR. GALLAGHER: No, I had complete faith in the criminalist.
MR. BRENNAN: I approach, Your Honor.
JUDGE CANNONE: Yes.
MR. BRENNAN: There is a box for identification that has a glass in it. I'd like to make that into evidence.
JUDGE CANNONE: I'll do it later. Is there any objection, Mr. Jackson?
MR. JACKSON: Any objection? Yeah. Just — no gesture on it. Thank you.
JUDGE CANNONE: All right. So we can put it in at any time then and when Mr. McDermott comes back.
MR. BRENNAN: The glass that you showed the jury yesterday — um, when you showed it to us yesterday, did it look any differently than when you recovered it from the ground where you were looking that morning?
MR. GALLAGHER: No.
MR. BRENNAN: Did you have any information that that glass came from inside Fairview Road?
MR. GALLAGHER: No.
MR. BRENNAN: Do you know where that glass came from?
MR. GALLAGHER: I have no personal knowledge of where that glass came from.
MR. BRENNAN: Thank you. No further questions.
MR. JACKSON: Very quickly, you indicated — you indicated that you were spitballing, to use your word.
MR. GALLAGHER: Correct. Correct.
MR. JACKSON: Trying to figure out what happened.
MR. GALLAGHER: Correct.
MR. JACKSON: That's the job of an investigator.
MR. GALLAGHER: Correct. That is correct. Yes.
MR. JACKSON: You don't just take witnesses' words for things, do you?
MR. GALLAGHER: That is correct.
MR. JACKSON: You have to corroborate things.
MR. GALLAGHER: Yes.
MR. JACKSON: You have to look deeper.
MR. GALLAGHER: Yes.
MR. JACKSON: Ask more questions.
MR. GALLAGHER: Absolutely.
MR. JACKSON: Actually investigate.
MR. GALLAGHER: That's why we're here today.
MR. JACKSON: You don't rule out anything or anyone right off the bat.
MR. GALLAGHER: Correct. Correct. No one is ruled out. Nothing is ruled out. Correct. That's correct.
MR. JACKSON: You follow where the evidence leads you. Period.
MR. GALLAGHER: Amen. Absolutely.
MR. JACKSON: You didn't seek — sorry, you didn't seek to separate the occupants at 34 Fairview.
MR. GALLAGHER: Correct. No.
MR. JACKSON: You didn't interview Brian Albert formally, did you?
MR. GALLAGHER: I did not. No.
MR. JACKSON: You were asked by Mr. Brennan, did he ever end the conversation precipitously? Did he end it early or anything like that?
MR. GALLAGHER: He didn't end any — he didn't end any interview because he wasn't interviewed.
MR. JACKSON: Correct. That is correct. You didn't interview Brian Higgins.
MR. GALLAGHER: That is correct.
MR. JACKSON: You wouldn't interview Brian Higgins because he's your personal friend.
MR. GALLAGHER: Correct. Correct.
MR. JACKSON: But you didn't have anybody else interview him either, did you?
MR. GALLAGHER: Again, I — we're talking — I think we've gone over this and maybe you didn't understand. I didn't know Brian Higgins was at the house at that time.
MR. JACKSON: Because you didn't ask anybody else who was at the house at that time.
MR. GALLAGHER: I wasn't talking to anybody at that house. Correct.
MR. JACKSON: Might have been a good idea, wouldn't it?
MR. GALLAGHER: Not at that time. We were there for one specific reason. We wanted to get to the hospital. So no.
MR. JACKSON: You're shaking your head again. I'm not done with my question. Might have been a good idea, Mr. Gallagher, since you happened to be there — no sweat off your brow — to sit Mr. Albert down and say, "By the way, I got a pen and paper. Who was here last night just before John O'Keefe was found dead on your lawn? Who was here?" Might have been a good idea.
MR. GALLAGHER: Correct. So, that was already done by Detective Sergeant Lank, and it was documented in his report — everybody Mr. Jackson is asking about.
MR. JACKSON: Then, how did you two not know that Brian Higgins was there?
MR. GALLAGHER: I don't know. I'm confused. At what time? At what time exactly?
MR. JACKSON: At what time? When John O'Keefe arrived. Okay. Before Fairview — after midnight on January 29th, 2022.
MR. GALLAGHER: So when I discovered Brian Higgins was there wasn't until I read the report.
MR. JACKSON: You were standing in the house. Sergeant Lank — who you just told these jurors knew that Brian Higgins and everybody else was there —
MR. GALLAGHER: He had obtained the names. He hadn't written the report yet.
MR. JACKSON: And had you told his boss?
MR. GALLAGHER: I don't recall.
MR. JACKSON: Even though you two went together to interview yet another witness.
MR. GALLAGHER: That's correct. There was a very fast-moving scene and pace. That is correct.
MR. JACKSON: While you were spitballing, you also didn't secure the camera footage that we've talked about — the Arlo footage.
MR. GALLAGHER: Yes, that's correct.
MR. JACKSON: You also didn't actually formally search the house.
MR. GALLAGHER: Correct. Absolutely correct. We just talked about that.
MR. JACKSON: You didn't seek consent by Brian — pardon me, by Brian Albert — to search the house.
MR. GALLAGHER: Correct. That's correct.
MR. JACKSON: You also didn't seek a search warrant. You talked about that.
MR. GALLAGHER: Correct. Correct.
MR. JACKSON: You don't get punished or in trouble if you seek a search warrant — and a judge who has to sign the search warrant, normal citizens can't do that, it requires a judge's signature — you don't get in trouble or get spanked or get slapped or get fined if you seek a search warrant that is denied. Correct?
MR. GALLAGHER: Correct. In this particular situation, I would need to articulate facts, certain circumstances, and witness statements. What I had was nobody could put John O'Keefe in the house, including Miss Read, and that we had a glass where they were coming from a bar. And I had three separate police officers, including myself, that had been in that house on three separate occasions and saw nothing amiss. I have a good faith obligation to present the truth to a judge. And if I don't, I can end up on a Brady list or a Giglio list, as you know. And my right — my credibility to testify — my career is basically over. So yes, you can get in trouble.
MR. JACKSON: You're talking about lying in an affidavit.
MR. GALLAGHER: Sir, I'm talking about misleading. Correct. I would have to twist circumstances to have the right to search Brian Albert's house. We had no reason. And there's been no reason since.
PARENTHETICAL: [Gap — sidebar; approximately 3 minutes]
JUDGE CANNONE: This looks like a good place to take our morning break. So let's take a 15-20 minute break.
MR. JACKSON: How about this? How about this? There's a dead guy on the lawn that looked like he potentially could have been in a physical altercation. How about that? Might that be of some concern — to go inside the house and see if there was a struggle that started in the house?
MR. GALLAGHER: There's still no evidence to go into the house.
PARENTHETICAL: [Morning recess — approximately 26 minutes]
MR. JACKSON: You have a guy that's out on the lawn with no coat on. You think the coat might be inside the house? That might be a reasonable assumption. Yes or no?
MR. GALLAGHER: No.
MR. JACKSON: Guy outside with no shoe on. You think the shoe might be inside the house? That might be a reasonable assumption.
MR. GALLAGHER: I never saw Mr. O'Keefe. I wasn't aware that he — because you didn't — to find out the details. Other people knew every single fact that
MR. JACKSON: I've just suggested at the time you walked in the house.
MR. GALLAGHER: Correct.
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: The fact is you didn't seek a search warrant.
MR. GALLAGHER: I wouldn't.
MR. JACKSON: Correct. The fact is you never searched the house.
MR. GALLAGHER: That's correct.
MR. JACKSON: The fact is you never searched the basement.
MR. GALLAGHER: That's correct.
MR. JACKSON: The fact is you never searched the garage.
MR. GALLAGHER: That's correct.
MR. JACKSON: That's all I have.
MR. BRENNAN: Your honor, have you ever learned one fact that would have justified searching that house?
MR. GALLAGHER: Not to this day.
JUDGE CANNONE: Sustained as to form. And you can put the glass in right now. Mr. — thank you.
MR. BRENNAN: Move that into evidence, please. Is it the 58?
JUDGE CANNONE: All right, Lieutenant, you're all set, sir.
MR. GALLAGHER: Thank you.
JUDGE CANNONE: Your next witness, Mr. Brennan?
MR. BRENNAN: I'd like to play clip 18, please.
JUDGE CANNONE: Okay. Thank you. May we approach —
COURT OFFICER: All right, please close your notebooks and follow me.
MR. JACKSON: You are unmuted.
MR. JACKSON: Thank you.
JUDGE CANNONE: All right. I'll see counsel at sidebar. Please —
COURT OFFICER: Put it back in session. Take your seat.
JUDGE CANNONE: All right, Mr. Brennan.
MR. BRENNAN: Thank you. The Commonwealth moves into evidence and asks to play clip 18.
JUDGE CANNONE: Okay.
VIDEO PLAYBACK: [video clip — karen read]: So when John got out of the car at Brian Albert's house, he took my full vodka soda, which is sitting in the cup holder. Thank you. All right. Your next witness.
MR. BRENNAN: One more, please. Your honor, the Commonwealth moves into evidence and seeks to play clip number 17, please.
JUDGE CANNONE: Okay.
UNKNOWN: If I may see the exhibit.
UNKNOWN: This one exhibit contains clip 12, clip 12A, clip 16, clip 17, and clip 18, all of which were previously introduced. Okay, that's exhibit number —. All right. Thank you. Your next witness, Mr. Lally.
VIDEO PLAYBACK: [video clip — karen read]: I gave an interview with ABC with Matt Gutman — I think this was whom I gave the interview to — and I said, he asked, why was I saying, could I hit him? Did I hit him? And I said, yeah. My first thought was, I've been out late. I've been drinking. And he's in the general vicinity of where I last saw him. I mean, they talk about the left side of the property and the right as if it's, you know, Hammersmith Farms. It's a postage stamp. It's 50 feet. So he's in the front yard to the left of the front door and no one's coming out of the house. Jen's telling me nobody's seen him. So I'm thinking, Jesus, was I starting to pull away and I ran over his foot — like, he's roughly where I left him. So yeah, when I found him, I was thinking, did I clip him some?
JUDGE CANNONE: Okay, thank you. So in order it has 18 and then 17 — or are they in the reverse order on the clip?