Procedural - Motions

MR. BRENNAN: ...to consolidate. Instead of having 50 of these things, I try to make them more limited. We did use more updated software. The only difference is it shows emojis. In addition, we took the phone calls and the emails — or the text messages — which was presented at the last trial. Content has not changed. We just put it in a PowerPoint so that when it's read, instead of just reading the text messages and then searching for the phone calls where Trooper Guarino would then refer to a separate document, they're simply in order.

MR. BRENNAN: There is a presentation of a different PowerPoint which is from the old data — 2023 — but it is information that was not introduced at the last trial, although it was clearly provided to the defense in advance, and what it is — it's healthcare data of the defendant's watch and — pardon me — Jennifer McCabe's watch, and what it does is it tracks her heart rate from midnight all the way through the next morning. Now, although that information was available to the defense, they could have done what they wanted with it, that information was never put in a PowerPoint presentation. I will not and do not expect Trooper Guarino to talk about it during his testimony. He's a witness. I'm going to ask the court to recall. The reason I turned that over was to be transparent and to be collegial.

MR. BRENNAN: We would not introduce it on direct, but as your honor ordered, there was an order not to get into third party culprit evidence. Jennifer McCabe was never identified as a third party culprit. Yet, in the opening, the defense suggested something about 2:27. If the defense is to cross-examine or suggest that a phone call occurred at 2:27, this would be to rebut that information. I could have waited until after the cross-examination and then sprung this as a surprise upon the defense, because it is powerful evidence showing her heart rate is inconsistent with being in a criminal conspiracy. Yet we provided it in advance so they'd have notice days before Trooper Guarino would even testify about it.

MR. BRENNAN: The presentation I would, regarding the text messages and phone calls. At the last trial, Trooper Guarino read the text messages from the screen and at the same time he would look at the phone calls and he would go back and forth between the papers. This is simply putting the phone calls with the text messages in the chronological order so that on the screen, rather than reading text messages and then referring to the phone calls and stating there was a phone call, it can simply be shown on the screen.

MR. BRENNAN: I can provide a copy.

MR. BRENNAN: It's going to be Peggy O'Keefe and then it would be Trooper Guarino. As I said, I can recall him and I expect to, because there are a number of other events if it becomes an issue. I can call him to authenticate the phones that we'll need for our further witnesses, which is Ian Whiffin and Jessica Hyde. And then I can simply recall him. I don't need to read these to the jury today. But there's nothing new in it. There's nothing surprising, but I will make this as easy as possible for everyone.

MR. BRENNAN: He'll — he's really being called to authenticate documents.

MR. BRENNAN: He will be not only a fact witness for downloading and authenticating, but he is essentially our reader. I can bring him back a day. I can bring him back in two days. It really doesn't matter. I don't want to deprive the defense of time to review.

MR. BRENNAN: Not for the Commonwealth. Thank you.

MR. BRENNAN: Your honor, I am unclear as to what the subject matter of the voir dire is going to be. So I am indifferent to this voir dire.

MR. BRENNAN: Yes. We'll defer to the court whenever is available. I mean, I'd like to keep the testimony going. I've already told the jurors that they have a half a day Friday. So Friday we'll be back to where we were at the half a day.