Commonwealth v. Read — Trial ArchiveJennifer McCabe — Direct (Part 2)
697 lines(Court in session at 9:07 a.m.)
(Defendant is present with counsel.)
COURT CLERK: Commonwealth versus Read. Counsel had asked to see you before the jury came over, Your Honor.
JUDGE CANNONE: All right. Good morning.
MR. BRENNAN: Good morning, Your Honor.
JUDGE CANNONE: So what is it you wanted to see me about, Mr. Brennan? I was handed clips 12A and 16.
MR. BRENNAN: I think it's 12 and 12A that you should have.
JUDGE CANNONE: Oh, okay.
MR. BRENNAN: You have 12 from yesterday, 12A is in addition. This is regarding the evidentiary the issue of Jennifer McCabe's phone call to John O'Keefe when she was giving directions, and she identified the location by pointing out (c) 's mom's house.
JUDGE CANNONE: Okay.
MR. BRENNAN: I believe that those two clips will have statements of the defendant, which will establish the predicate, for allowing in that statement by Ms. McCabe, and then I expect to play those clips after Ms. McCabe's testimony concludes.
JUDGE CANNONE: All right. What do you say, Mr. Jackson?
MR. JACKSON: That does not cure the hearsay aspect. I understand Mr. Brennan's argument about the relevance to his case of what Ms. Read said at her statements. That's obviously -- this was an admission of a party opponent of the defendant's statement. That does not do anything to cure the hearsay that was being asked or requested by this witness to address the statements that were sought yesterday. Hearsay is hearsay. If you want to get the clips in, he can do so. I have no objection to that as long as they were in context, and if they pass the relevancy. But it does appear to be a hearsay issue.
JUDGE CANNONE: So Ms. McCabe testified, my notes for whatever it's worth, said at the end of the day one of the things she testified to was the defendant on the morning when they were driving over to Fairview saying could John be cheating on her? Could he be with (c) 's mom?
MR. BRENNAN: Yes.
JUDGE CANNONE: So that's in evidence. You want more than that? Would do you expect the testimony to be?
MR. BRENNAN: I expect, if allowed to testify, Mrs. McCabe would testify that she had a phone call with John O'Keefe before John O'Keefe and the defendant arrived at Fairview, and John O'Keefe and the defendant were lost. And in giving directions, she offered to John O'Keefe, which was heard by the defendant, "The house is near (c) 's mom's house." That is evidence of motive.
JUDGE CANNONE: All right. Just that? That she said -- yeah, I'm going to allow that.
MR. JACKSON: I don't have a problem with that. Yesterday -- I'm sorry. I misunderstood. I thought Mr. Brennan was trying to get in the nature of the relationship between (c) and John, which would be hearsay. I have no problem with this offer of proof.
JUDGE CANNONE: Yeah, it's a little bit different than yesterday.
MR. BRENNAN: Okay.
JUDGE CANNONE: And I understand the loop you'll make eventually, but this is all you intend to get through Ms. McCabe now, right?
MR. BRENNAN: Yes.
JUDGE CANNONE: Okay.
MR. BRENNAN: Because I don't think from what I heard she knows of that relationship at that time.
JUDGE CANNONE: Okay.
MR. BRENNAN: So I don't think I should ask that.
JUDGE CANNONE: Okay.
MR. BRENNAN: Just that she was giving directions and --
JUDGE CANNONE: That's fine. That's fine and then those clips can come in.
MR. BRENNAN: Great. Fantastic. Thank you.
JUDGE CANNONE: All right. So we'll bring the jurors over.
MR. JACKSON: The only thing I would ask is the clips not be played with Ms. McCabe on the stand.
MR. BRENNAN: Agreed.
JUDGE CANNONE: All right. Let's bring the jurors over. Do you need me to take a recess? Okay. Why don't --
MS. MCLAUGHLIN: Your Honor, can we be seen at sidebar?
JUDGE CANNONE: Yes, yes. Sidebar, please.
COURT CLERK: Sidebar, please.
JUDGE CANNONE: Mr. Brennan and Mr. Jackson.
MR. JACKSON: Oh, sure.
(Sidebar commences:
MS. MCLAUGHLIN: Your Honor, as advised by the Court yesterday evening, the Commonwealth provided a copy of a two-page unauthored narration of an April 2023, incident. I --
JUDGE CANNONE: Can I have that, Jim?
MS. MCLAUGHLIN: -- along with two victim witness advocates spoke briefly last night with Mrs. McCabe to confirm that she had an opportunity speak with counsel, and were advised of other potential rights should defense attempt to impeach her with what the Commonwealth would argue is irrelevant and inadmissible unauthenticated hearsay. There was no conversations about Mrs. McCabe's testimony, no prep, and the facts of the case were discussed.
JUDGE CANNONE: Okay. All right. Thank you. I want you to come up to sidebar before you intend to impeach with this, Mr. Jackson.
MR. JACKSON: Understood.
JUDGE CANNONE: Scheduling. Are we on track?
MR. BRENNAN: Pardon, Your Honor?
JUDGE CANNONE: Are we on track scheduling-wise?
MR. BRENNAN: We are.
JUDGE CANNONE: All right. Thank you.
end of sidebar.)
(Jury in at 9:14 a.m.)
JUDGE CANNONE: Good morning, again, Counsel. Good morning, Ms. Read. Good morning, jurors. We appreciate you being prompt and ready to go this morning. There was something I needed to discuss with the lawyers to help streamline the evidence that will be presented to you today. So I appreciate your patience. I do have to ask you those questions. Were you all able to follow my instructions and refrain from discussing this case with anyone since you left? Everyone said yes or nodded affirmatively. Were you also able to follow my instructions and refrain from doing any independent research or investigation into this case? Everyone said yes or nodded affirmatively. Did anyone happen to see, hear, or read anything about this case since we left yesterday? Everyone said no or shook their heads. Thank you very much. Can we have Ms. McCabe back, please?
COURT CLERK: Ms. McCabe, I'll remind you you're still under oath. Thank you.
MR. BRENNAN: May I proceed?
JUDGE CANNONE: Good morning, Ms. McCabe.
MS. MCCABE: Good morning.
DIRECT EXAMINATION BY MR. BRENNAN, continued:
MR. BRENNAN: Good morning.
MS. MCCABE: Good morning.
MR. BRENNAN: Before you take us back to Fairview Road, I want to ask you a couple of questions about John's house at Meadows. Are you familiar with his house?
MS. MCCABE: Yes.
MR. BRENNAN: Have you seen the front of his house before?
MS. MCCABE: Yes, I have.
MR. BRENNAN: Are you familiar with his driveway?
MS. MCCABE: Yes.
MR. BRENNAN: Are you familiar with whether there's any surveillance system at Mr. O'Keefe's house?
MS. MCCABE: Yes.
MR. BRENNAN: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. BRENNAN: Ms. McCabe, I'm showing you what has been previously marked as Exhibit 6. Do you recognize that photo?
MS. MCCABE: Yes, I do.
MR. BRENNAN: And what is it?
MS. MCCABE: That's John O'Keefe's house.
MR. BRENNAN: Could we provide Exhibit 6 for the jury, please.
(Exhibit 6 displayed.)
MR. BRENNAN: On that screen, is that Mr. O'Keefe's home?
MS. MCCABE: Yes.
MR. BRENNAN: I'm going to show you what's been marked as Exhibit 8. Do you recognize that?
MS. MCCABE: Yes.
MR. BRENNAN: And what is it?
MS. MCCABE: That is the side of Mr. O'Keefe's house, the two garage doors.
MR. BRENNAN: Is there any indication of surveillance?
MS. MCCABE: It looks like it's a camera right here.
MR. BRENNAN: Is that what John O'Keefe's side of his house looks like?
MS. MCCABE: Yes.
MR. BRENNAN: I want to show you Exhibit 10.
(Exhibit 10 displayed.)
MR. BRENNAN: Do you recognize what's in that photo?
MS. MCCABE: Yes.
MR. BRENNAN: What is it?
MS. MCCABE: It is the driveway of John O'Keefe's.
MR. BRENNAN: Do you see a car to the left?
MS. MCCABE: Yes.
MR. BRENNAN: Do you know whose car that is?
MS. MCCABE: Yes, that's Ms. Read's.
MR. BRENNAN: Is that what you left it the night before of those early morning hours when you drove to Mr. O'Keefe's house?
MS. MCCABE: Yes.
MR. BRENNAN: I want to show you what's been marked as Exhibit 11. Do you recognize what's in that photo?
MS. MCCABE: Yes, Ms. Read's vehicle.
MR. BRENNAN: Is that the vehicle that Ms. Read showed you with the broken and missing taillight that morning?
MS. MCCABE: Yes, it is.
MR. BRENNAN: You mentioned earlier in the night you spoke to John O'Keefe when you called him or he called you about directions to Fairview Road.
MS. MCCABE: Yes.
MR. BRENNAN: And you also shared that you had a phone conversation offering directions?
MS. MCCABE: Yes, I did.
MR. BRENNAN: Did you tell John that the house at Fairview was near (c) 's mom's house?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to form, Mr. Brennan.
MR. BRENNAN: What did you tell John as far as directions to Fairview; how did you mark the trip for him?
MS. MCCABE: I told him to go past (c) 's house, (c) 's street, and then fall it down to the end.
MR. BRENNAN: Now, I want you to take us back to where we were yesterday when we left off. You had brought us back to Fairview Road and you had found John?
MS. MCCABE: Yes.
MR. BRENNAN: You shared with us that you were trying chest compressions. Before the chest compressions, did you make a phone call?
MS. MCCABE: I called 911.
MR. BRENNAN: Your Honor, I'd like to move to introduce a copy of that 911 call.
JUDGE CANNONE: Okay. Do you have something physically to --
MR. BRENNAN: Ms. McLaughlin does.
JUDGE CANNONE: Thank you.
(Whereupon Exhibit No. 45, Audio of 911 Call, was marked as an exhibit.)
MR. BRENNAN: With the Court's permission, I'd like to play Exhibit 45.
JUDGE CANNONE: Yes.
(Exhibit 45 played.)
MR. BRENNAN: Ms. McCabe, describe your mental state when you were speaking to 911.
MS. MCCABE: I guess the best way to describe was I was in shock. My heart was racing. I was trying to be as helpful as I could and get the information to -- the most important information out as quick as I could to the 911 operators, but also the scene there with Karen and Kerry was a big chaotic between the two of them. So I was just trying my best to be as calm as I could, to get the help there as fast as I could, to answer their questions the best that I could.
MR. BRENNAN: Before you told the 911 operator John O'Keefe's name and his age, you said, "There's a man in the snow." Do you know why you chose those words?
MS. MCCABE: I think I just wanted to get out the most specific details. So a man in the snow versus, you know, John O'Keefe and into a story. I think I was just get the details to them as fast as possible to get help to him as fast as possible.
MR. BRENNAN: When you told the 911 operator that your friend John O'Keefe was the person lying in the snow, how did you know his age?
MS. MCCABE: We used to joke because he was a couple of months older than me. So I would, you know, oh, you're older than me. Just a little thing between friends.
MR. BRENNAN: When you called the 911 operator, had Kerry and the defendant already been around or near John?
MS. MCCABE: Yes.
MR. BRENNAN: Do you know if they had begun trying CPR before you called 911?
MS. MCCABE: I'm not sure if they had because Karen had straddled him and lifted her shirt, was warming him up, and then Kerry was yelling at her to get off. Then I think when Kerry got the blankets and was trying to put them under John, I think as she started to move him and wipe him, then blood started to come out. Then Karen was afraid he was going to choke on his blood and wanted to move him on his side, and then Kerry was yelling at her, "We can't move him." And this is kind of all going on while I was talking to 911.
MR. BRENNAN: You described what you saw when you said at some point he was bleeding from the face area. Was that before or after he was moved?
MS. MCCABE: After.
MR. BRENNAN: Before he was moved, did you see any active bleeding?
MS. MCCABE: No.
MR. BRENNAN: After you called 911, what do you do next?
MS. MCCABE: I think I called my sister, and she didn't answer and then -- because I think I called her as I was walking over to John, and she didn't answer and then I immediately got down on the ground and Kerry Roberts asked me to take over.
MR. BRENNAN: How long did you try to help John for?
MS. MCCABE: I'm not sure. I'm not sure.
MR. BRENNAN: How long were you and the defendant and Ms. Roberts there before someone else arrived?
MS. MCCABE: Police officer was the first to arrive. In the moment, it seemed like a long time, but I think it was fairly quick that they arrived.
MR. BRENNAN: At any point during the time when you tried to help Mr. O'Keefe, and the first police officer arrived, at any point did you see any signs of life from Mr. O'Keefe?
MS. MCCABE: No.
MR. BRENNAN: When the police officers first arrived, do you remember what happened next?
MS. MCCABE: I remember there was -- it was very chaotic, but there was talk about a spotlight. I remember -- I think I got up and ran to kind of wave the -- to grab -- to get the police officer's attention so he could see where we were.
MR. BRENNAN: And then what happened?
MS. MCCABE: The police officer, not sure specific, I do remember him asking about John. I think he said, is he a drug user. He was just asking some basic questions.
MR. BRENNAN: And what's the environment? What's going on around you?
MS. MCCABE: Karen is just running around crazy, like, just yelling, screaming, kind of a ping pong.
MR. BRENNAN: What were you trying to do?
MS. MCCABE: I was just trying to talk to the officer. I guess I just went into this, like, type of mode I have to just talk to him, get the information out, figure out, like, how we can best help John and, like, what happened to him and try to save him, ultimately.
MR. BRENNAN: And what happens next?
MS. MCCABE: More officers begin to come, fire, and EMT. So the scene becomes active with a lot of different presence. You know, John -- I think they lift John onto a board at one point. The officers are asking us questions. Karen is kind of coming over, talking to the questions, and then kind of just running away, and then she runs back over. She's doing a lot of screaming. A lot of repetitive, "Is he dead? Is he dead? Is he dead?" You know, "Could I have hit him? Did I hit him?" Kerry I think -- Kerry is off kind of making phone calls I believe to John's family.
MR. BRENNAN: Do you know what time the first responders lifted John from the ground and put him on that bed?
MS. MCCABE: I don't know what time, but it was ...
MR. BRENNAN: That's the only question.
MS. MCCABE: Okay.
MR. BRENNAN: You heard your 911 call, do you know the time of that 911 call?
MS. MCCABE: Not off the top of my head, no.
MR. BRENNAN: At some point, did you talk to a number of different people at the scene?
MS. MCCABE: Yes.
MR. BRENNAN: And who were you talking to?
MS. MCCABE: The first officer was Officer Saraf. I know I spoke with him. I spoke with an Officer Lank, an Officer Goode. There were other officers. I don't remember their names. There were EMTs. I don't remember their names, either.
MR. BRENNAN: You've in this area for a long time?
MS. MCCABE: Yes.
MR. BRENNAN: Active in the community?
MS. MCCABE: Yes.
MR. BRENNAN: Did you know Sergeant Goode from before that night?
MS. MCCABE: I knew of him. I didn't know him personally.
MR. BRENNAN: Did you know Detective Lank?
MS. MCCABE: Yes, I knew him.
MR. BRENNAN: How did you know him?
MS. MCCABE: We were friendly.
MR. BRENNAN: Children ever associate with each other?
MS. MCCABE: Not until recently.
MR. BRENNAN: After you had a chance to speak to some of the officers, did you move around at all yourself?
MS. MCCABE: Yes. I, you know, kind the officers would talk to us here and then a little bit over to the side. I tried to comfort Ms. Read. We -- at one point, Ms. Read was very upset, and one of the officers thought it would be best if maybe she went and just sat in one of the cruisers for a little bit because she was just doing a lot of screaming and yelling. I think they were just trying to, you know, get, you know, work on John and make the scene a little less chaotic. So I went into the back of the car with her, and Kerry Roberts came over. Then we all sat in the back of the -- well, I -- Kerry -- Karen and I kind of scrunched and sitting in the back and Kerry was at the door of the cruiser.
MR. BRENNAN: Why did you get in the car with the defendant?
MS. MCCABE: She was crying. She asked me to get in. We held hands. We prayed. She did have a blood on her hands, and she said, "Could I have gotten my period? Who's going to take care of the kids?" She just kind of was all over the place, and then at one point, we saw them moving John towards the ambulance. And at that point, Ms. Read started yelling to Ms. Roberts, "Go check on him. Are they working on him? Is he dead? Is he dead?" And at that point, myself and Ms. Read got out of the car, and she started yelling and pulling on me to Google hypothermia or Google how long it takes for somebody, you know, to die in the cold.
MR. BRENNAN: When the defendant first asked you to Google an inquiry about hypothermia, were you still inside the police cruiser or were you outside?
MS. MCCABE: Outside.
MR. BRENNAN: What was the weather? I know it's an obvious question, but how cold was it?
MS. MCCABE: It was very cold. It was windy. The snow was blowing. As I stated, I have multiple sclerosis so when I'm out in either too hot or cold temperatures, I lose the feeling and sensation in my fingers, which obviously made the Googling very hard for me to do because of my, you know, motor skills.
MR. BRENNAN: So when you were outside of the car with the defendant and she had asked you to do a search regarding hypothermia, did you try to do that?
MS. MCCABE: Yes, I did.
MR. BRENNAN: Do you know the exact time from your memory, not from reading or learning, but from your memory, do you remember the exact time you did that?
MS. MCCABE: No.
MR. BRENNAN: Was it after the police came that morning?
MS. MCCABE: Yes.
MR. BRENNAN: Had you ever, ever attempted to search about hypothermia any time before that moment that morning?
MS. MCCABE: No.
MR. BRENNAN: Or that day?
MS. MCCABE: No.
MR. BRENNAN: That week?
MS. MCCABE: No.
MR. BRENNAN: Was this the first that morning after the defendant asked you to search when you searched that phrase?
MS. MCCABE: Yes, it was.
MR. BRENNAN: And did you complete your search and get a result?
MS. MCCABE: So I think -- I don't know what came up because I think as I entered it I think I misspelled things. And so then I think I tried a second search, and again, I don't think I even paid attention to what came up because we were already onto the next thing. Karen was already moving and screaming about, you know, the next thing to Kerry, "Are they working on him?" or "Is he dead?"
MR. BRENNAN: Did the defendant move somewhere from the point when she first asked you to try to Google about hypothermia to something else?
MS. MCCABE: She was next to me, and then I think she took off. Like, she kept kind of running off.
MR. BRENNAN: And what did you do?
MS. MCCABE: I believe as they were putting -- I think I stood there. I believe as they were putting John into the ambulance, I went back kind of where -- to the original spot where we had been talking to the police, and at that point a new officer might have come because I remember talking to multiple officers there.
MR. BRENNAN: At some point, did you back towards the area Ms. Roberts' car?
MS. MCCABE: Yes, that's where I'm referring to. Sorry.
MR. BRENNAN: At some point -- at some point, were you with the defendant when she spoke to an officer and a first responder?
MS. MCCABE: Yes.
MR. BRENNAN: Do you remember if the first responder was a man or a woman? A I remember there was a woman right next to us, yes.
MR. BRENNAN: Do you remember if that was before or after the defendant asked you to search about hypothermia?
MS. MCCABE: I'd be guessing if I -- I don't.
MR. BRENNAN: Don't guess. When the defendant was speaking to the first responder, the woman, were you there?
MS. MCCABE: Yes.
MR. BRENNAN: Did you hear or do you remember the defendant say anything to the first responders?
MS. MCCABE: Yes.
MR. BRENNAN: What did she say?
MS. MCCABE: She told the first responder, "I hit him. I hit him. I hit him."
MR. BRENNAN: When she told the first responder, "I hit him," how did you react?
MS. MCCABE: I was startled, kind of what are you saying, what are you talking about.
MR. BRENNAN: Did you say anything to the defendant?
MS. MCCABE: I think after the second or third time she was saying it, I was like, Karen, Karen, what are you saying.
MR. BRENNAN: Why were you trying to interrupt her?
MS. MCCABE: Because I thought she was just talking crazy, and I'm saying why was she saying she hit him.
MR. BRENNAN: Were you trying to look out for her?
MS. MCCABE: Yes.
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Move to strike, Your Honor.
JUDGE CANNONE: I'll strike it. You can ask it differently.
MR. BRENNAN: What was your motivation trying to interrupt the defendant from making the statements to the first responder?
MS. MCCABE: Karen was hysterical, irrational.
MR. JACKSON: Objection.
MR. BRENNAN: I'll move on.
JUDGE CANNONE: Okay. I'm going to see counsel at sidebar for just a minute, please.
(Sidebar commences:
JUDGE CANNONE: Mr. Alessi, I watched you yesterday, and I just started watching you again. You turn toward the jury and make faces in utter disbelief, you roll your eyes. It was reported to me yesterday by a member of the staff. You have to stop it.
MR. ALESSI: I will not do that, Your Honor. I was not aware of that any, and I will not do that. I'll make a special effort not to have that happen.
JUDGE CANNONE: And turn your chair to the front, not to the jury.
MR. JACKSON: I will do that.
end of sidebar.)
MR. BRENNAN: May I?
JUDGE CANNONE: Yes.
MR. BRENNAN: After you made the search to the defendant's request for an inquiry regarding hypothermia, did you have a chance to speak to the officers further?
MS. MCCABE: Yes.
MR. BRENNAN: Did they ask you to do anything or go anywhere?
MS. MCCABE: Yes. Officer Lank asked me to go into my sister's house and to wake them up.
MR. BRENNAN: And your sister's name again?
MS. MCCABE: My sister Nicole.
MR. BRENNAN: And that is the house you were in the night before?
MS. MCCABE: Yes.
MR. BRENNAN: And after you spoke to the officer, they requested you go into speak to your sister, did you?
MS. MCCABE: Yes.
MR. BRENNAN: Was there any directive on what you should speak to your sister about?
MS. MCCABE: No.
MR. BRENNAN: After the officers asked you to go into the house, did you?
MS. MCCABE: Yes, I did.
MR. BRENNAN: Do you remember what door you went through?
MS. MCCABE: Yes. I went through the front door.
MR. BRENNAN: Was the door locked?
MS. MCCABE: Yes.
MR. BRENNAN: How did you get in?
MS. MCCABE: Oh, I'm sorry. I thought you said was it unlocked.
MR. BRENNAN: No, I asked if it was locked.
MS. MCCABE: Oh, sorry. It was unlocked.
MR. BRENNAN: As you're approaching the house, were there any lights on?
MS. MCCABE: No.
MR. BRENNAN: Was it dark?
MS. MCCABE: Yes.
MR. BRENNAN: Any signs of any movement inside the house before you went in?
MS. MCCABE: No.
MR. BRENNAN: Take us through walking through the front door, what happens?
MS. MCCABE: So I went in the front door, I opened the door. I walked up the stairs into their hallway, and then I think I knocked on their door.
MR. BRENNAN: The bedroom door?
MS. MCCABE: Their bedroom door. And then I kind of -- I opened the door, I went in, and I walked over to the bed, and I was like, Brian, Nicole, Brian, Nicole, because I was in a position where I felt the world was going on around me and so much was happening, but I also was aware that I was just about to wake up two people that are sound asleep and they're going to see me standing over their bed and be startled wondering what am I doing here.
MR. BRENNAN: So what happens?
MS. MCCABE: So I kept -- it took a minute or two, and then Brian woke up, and he immediately was like startled. He said, "Jennifer, what's going on? What are you doing?" And then I believe I tried, the best I could, to say what was going on. I think I said, "We found John."
MR. BRENNAN: You don't need to describe.
MS. MCCABE: Okay.
MR. BRENNAN: But again, I want to know their reaction and interaction with your sister and Brian Albert?
MS. MCCABE: They were startled and confused.
MR. BRENNAN: Did you have a conversation with them?
MS. MCCABE: Yes.
MR. BRENNAN: How long was that conversation?
MS. MCCABE: Brief. They got up, got dressed. I spoke to them.
MR. BRENNAN: And where did you go and where did they go?
MS. MCCABE: Then we went -- all three of us went down the stairs.
MR. BRENNAN: The upstairs to the downstairs?
MS. MCCABE: Upstairs to downstairs.
MR. BRENNAN: And upstairs is the second level, is downstairs the first level?
MS. MCCABE: Yes.
MR. BRENNAN: When you come down the stairs, can you see the front door?
MS. MCCABE: Yes.
MR. BRENNAN: Is there anybody in the house at that point?
MS. MCCABE: I saw Officer Lank.
MR. BRENNAN: In the house?
MS. MCCABE: Yes.
MR. BRENNAN: Do you know if he had been invited in?
MS. MCCABE: I have no idea.
MR. BRENNAN: When you came downstairs and saw Officer Lank, where was your sister and Brian Albert?
MS. MCCABE: They were walking with me downstairs.
MR. BRENNAN: And did you see whether or not the officer spoke with your sister and your brother -- brother-in-law?
MS. MCCABE: He did, yes.
MR. BRENNAN: Were you there during that conversation?
MS. MCCABE: No.
MR. BRENNAN: How long was that conversation, do you know?
MS. MCCABE: I'm not sure.
MR. BRENNAN: Where did you go when the officer was speaking to your sister and your brother-in-law inside their home?
MS. MCCABE: I was standing at the front doorway, and then my husband Matt had just arrived.
MR. BRENNAN: What happened next?
MS. MCCABE: I started talking to Matt and almost immediately, Officer Lank came, got Matt, and asked if he could talk to him outside.
MR. BRENNAN: At this point, I want to go back and show you some video. Have you seen video in this case before?
MS. MCCABE: Yes.
MR. BRENNAN: I'd like to ask the Court's permission to display Exhibit 4, and I'd like to walk you through some of the video.
JUDGE CANNONE: Okay.
MR. BRENNAN: Ms. Gilman, if you kindly play Exhibit 4. I'd like to start at 6:09:57. Ms. Gilman, if you could take us to the arrival at Fairview. (Video played.)
MR. BRENNAN: Will you stop there, please.
MR. BRENNAN: Ms. McCabe, do you recognize this scene?
MS. MCCABE: Yes.
MR. BRENNAN: Is that that morning?
MS. MCCABE: Yes.
MR. BRENNAN: The car directly in front of this dash cam, do you know whose vehicle that is?
MS. MCCABE: Kerry Roberts.
MR. BRENNAN: On the left, do you see somebody with a blue parka or jacket; do you know who that is?
MS. MCCABE: I believe that's me.
MR. BRENNAN: Can you take continue to play, please.
(Video played.)
MR. BRENNAN: Can you stop, please.
MR. BRENNAN: Does that fairly depict your first interaction with law enforcement?
MS. MCCABE: Yes.
MR. BRENNAN: Do you see a flagpole in that video?
MS. MCCABE: Yes.
MR. BRENNAN: And is that the area where you found John?
MS. MCCABE: Yes.
MR. BRENNAN: I'd like to move forward in the video. If we can move forward to 1645, please.
(Video played.)
MR. BRENNAN: Stop there.
MR. BRENNAN: Can you identify people on that video from right to left, if you can?
MS. MCCABE: I don't know the officer. That's myself. I believe behind me, that's Ms. Read.
MR. BRENNAN: And this is about -- let me the time correct, 6:14:47. And do you know where John is at this point?
MS. MCCABE: Are they lifting him to the left?
MR. BRENNAN: Continue, please, Ms. Gilman.
(Video played.)
MR. BRENNAN: Could you stop there? A The person all the way to the left near the flagpole, do you know who that is? A I believe Kerry Roberts.
MR. BRENNAN: And is that the area where John was found?
MS. MCCABE: Yes.
MR. BRENNAN: And that's at 6:15 a.m.? If you don't know, that's okay. Do you know what Ms. Roberts was doing at 6:15 a.m.?
MS. MCCABE: My guess is that --
MR. BRENNAN: I don't wait you to guess.
MS. MCCABE: Oh, I don't know.
MR. BRENNAN: Now, you're over to the right. If that you?
MS. MCCABE: Yes.
MR. BRENNAN: Continue, please.
(Video played.)
MR. BRENNAN: Is that Kerry on the left?
MS. MCCABE: Yes.
MR. BRENNAN: Stop please.
MR. BRENNAN: On the right, do you see yourself?
MS. MCCABE: Yes.
MR. BRENNAN: And which person are you?
MS. MCCABE: I'm the one next to the one with the fluorescent yellow.
MR. BRENNAN: Is your back to us?
MS. MCCABE: Yes.
MR. BRENNAN: To the right in yellow, do you know who that is?
MS. MCCABE: I don't.
MR. BRENNAN: Continue, please.
(Video played.)
MR. BRENNAN: Continue.
(Video played.)
MR. BRENNAN: Stop, please.
MR. BRENNAN: Do you see the defendant move from right to the left?
MS. MCCABE: Yes.
MR. BRENNAN: Do you see the yellow jacket?
MS. MCCABE: Yes.
MR. BRENNAN: Do you know whether or that's the woman first responder?
MS. MCCABE: I believe so, yes.
MR. BRENNAN: Do you know why the officer moved the defendant over to -- from right to left?
MS. MCCABE: I don't.
MR. BRENNAN: Continue, please.
(Video played.)
MR. BRENNAN: Stop.
MR. BRENNAN: At that part, is there a conversation between the defendant and the first responder?
MS. MCCABE: Yes.
MR. BRENNAN: Are you listening?
MS. MCCABE: Yes.
MR. BRENNAN: Continue.
(Video played.)
MR. BRENNAN: Stop.
MR. BRENNAN: Do you see the officer that was with you in that group?
MS. MCCABE: Yes.
MR. BRENNAN: Do you see him now turned away from the group speaking to somebody else?
MS. MCCABE: I do.
MR. BRENNAN: Continue, please.
(Video played.)
MR. BRENNAN: Thank you. If you could move ahead to 6:19, please?
(Video played.)
MR. BRENNAN: Is that you, Ms. McCabe, and Ms. Roberts?
MS. MCCABE: Yes.
MR. BRENNAN: Is that Ms. Roberts?
MS. MCCABE: Yes.
MR. BRENNAN: Stop for a moment.
MR. BRENNAN: Do you know at which point you went to the officer's car and sat in the back with Ms. Read?
MS. MCCABE: I believe it's right after this.
MR. BRENNAN: Continue, please.
(Video played.)
MR. BRENNAN: Stop.
MR. BRENNAN: Is that Ms. Roberts?
MS. MCCABE: Yes.
MR. BRENNAN: Stop, please.
MR. BRENNAN: Was it before or after that moment that you sat with the defendant, and Ms. Roberts stood outside the car, and you prayed?
MS. MCCABE: I'm not exactly sure from that video.
MR. BRENNAN: That's fine.
MR. BRENNAN: If we could move forward to 6:23:40, please.
(Video played.)
MR. BRENNAN: At this time, are you still with the defendant behind this car in some spot?
MS. MCCABE: Yes, I am.
MR. BRENNAN: Is it during this time 6:23 and 6:24 you tried to make those searches at the defendant's request?
MS. MCCABE: Yes.
MR. BRENNAN: Ms. Gilman, if you could move forward to 6:26:14.
(Video played.)
MR. BRENNAN: Pause, please.
MR. BRENNAN: Mrs. McCabe, do you see anybody returning to Ms. Roberts' car in that hearing?
MS. MCCABE: Yes.
MR. BRENNAN: And who do you see?
MS. MCCABE: I saw myself standing, and I'm standing outside of the car speaking to Officer Lank. I saw Kerry go up and near her car. I'm not sure if she went into it, and I saw someone walk Ms. Read into the car.
MR. BRENNAN: Is it around this time you have a conversation with Mr. Lank?
MS. MCCABE: Yes.
MR. BRENNAN: And what does he tell you again around this time?
MS. MCCABE: He at this point asking me questions about what had happened, and then soon after he asks me to go into my sister's house.
MR. BRENNAN: Ms. Gilman, if you could fast-forward to 6:34:15, please.
(Video played.)
MR. BRENNAN: Stop, please.
MR. BRENNAN: You described that the house had no lights on. Is that a fair depiction --
MS. MCCABE: Yes.
MR. BRENNAN: -- of the view?
MS. MCCABE: Yes.
MR. BRENNAN: Do you see a figure walking up the driveway?
MS. MCCABE: I -- not on this pause clip, but I did see it, yes.
MR. BRENNAN: Let's play and see you can identify.
(Video played.)
MS. MCCABE: Yes, I can see myself walking up.
MR. BRENNAN: Where are you now?
MS. MCCABE: I'm walking up the path to go up the stairs, the stairs into the house.
MR. BRENNAN: And this is at the request of Officer Lank?
MS. MCCABE: Yes.
MR. BRENNAN: And you described for us you went in and woke up your sister and brother-in-law?
MS. MCCABE: Yes.
MR. BRENNAN: Could we move forward to 6:39, please.
(Video played.)
MR. BRENNAN: Stop.
MR. BRENNAN: Can you see something happen at the house at that point?
MS. MCCABE: Yes.
MR. BRENNAN: And what happens?
MS. MCCABE: A light went on.
MR. BRENNAN: I'll note it's 6:39:08.
MR. BRENNAN: Thank you, Ms. Gilman.
MR. BRENNAN: After first responders took John and you had gone in your sister's house, what did you do next?
MS. MCCABE: Next, I -- after Officer Lank spoke to my husband, Kerry Roberts -- her and I had a conversation. She was going to go pick up John's parents in Braintree. At first I had told her I would go with her, but then Officer Lank said that I needed -- one of us had to stay at Fairview to speak to the -- I believe it was the state troopers that would be coming.
MR. BRENNAN: Did you stay at Fairview?
MS. MCCABE: I did, yes.
MR. BRENNAN: What was your mental state at that point?
MS. MCCABE: Again, I was in shock. The best way I can describe it is the feeling of I'm present, and everything's going on around me, and I'm just trying to process and make sense of everything.
MR. BRENNAN: Did you speak to your sister about what happened?
MS. MCCABE: Yes.
MR. BRENNAN: Did you speak to your brother-in-law about what happened?
MS. MCCABE: Yes.
MR. BRENNAN: And were they giving you any comfort or support?
MS. MCCABE: Yes, they were being very comforting and supportive.
MR. BRENNAN: As you were waiting at Fairview, did anybody else come to the house?
MS. MCCABE: Well, my husband Matt arrived. A little while later, Julie Albert had arrived. She was dropping something off and then Brian, Sr. called her in.
MR. BRENNAN: Is Julie Albert the wife of Chris Albert?
MS. MCCABE: Yes, she is.
MR. BRENNAN: And Brian Albert and Chris Albert are brothers?
MS. MCCABE: Correct.
MR. BRENNAN: When she arrived, did you to talk to her?
MS. MCCABE: Yes.
MR. BRENNAN: Were you in a group? Were you talking to people privately?
MS. MCCABE: No, we were all sitting around the kitchen table.
MR. BRENNAN: Why were you talking to everybody?
MS. MCCABE: We were trying to figure out what had happened. They were trying to be supportive trying to help me.
MR. BRENNAN: What was your mood?
MS. MCCABE: I was extremely concerned. I was calling Kerry trying to get updates about John. I was worried about John, his family, about (c) .
MR. BRENNAN: At that point, did you know whether John was going to live?
MS. MCCABE: I had a very strong -- I think deep down, I knew that John was gone, but, you know, there's -- until you hear it, I think there's that little bit of hope, maybe.
MR. BRENNAN: Did you speak to anybody about Kerry who was not at the home that morning?
MS. MCCABE: I believe I spoke -- yeah, Ms. Read.
MR. BRENNAN: You had a conversation?
MS. MCCABE: Yes. I spoke to her when she was in the ambulance.
MR. BRENNAN: Did you speak to her again later that day?
MS. MCCABE: No. I think I texted her asking her for Kerry's number because I didn't have it.
MR. BRENNAN: Did you hear back?
MS. MCCABE: No.
MR. BRENNAN: Did you ever speak to Ms. Read again?
MS. MCCABE: No, I've never spoken to her again.
MR. BRENNAN: When you were trying to get information from Kerry and you were in Fairview, did anybody else other than the people you described arrive at Fairview?
MS. MCCABE: Chris Albert -- oh, Brian Higgins showed up and Chris Albert.
MR. BRENNAN: Did you know Brian Higgins?
MS. MCCABE: I knew him as a friend of Brian's.
MR. BRENNAN: Did you see him at the Waterfall that night before?
MS. MCCABE: Yes, I did.
MR. BRENNAN: And after you arrived Fairview that night after leaving the Waterfall, was Brian Higgins one of the people there?
MS. MCCABE: Yes.
MR. BRENNAN: And did you talk about what had happened in front of Brian Higgins as well?
MS. MCCABE: Yes.
MR. BRENNAN: Was there a group discussion?
MS. MCCABE: I wouldn't say discussion. I would just say like, for instance, someone would ask me a question because everybody just didn't make sense to anybody. No one knew what had happened.
MR. JACKSON: Objection.
JUDGE CANNONE: So just move on.
MR. BRENNAN: So was there a lot of questions about what you saw or heard?
MS. MCCABE: Yes.
MR. BRENNAN: You mentioned earlier that you felt like you were in a state of shock. Did you feel like you were still in that state, or were things changing?
MS. MCCABE: Little by little, as I sat there, I started -- like things started coming back to me that were -- that had been said to me earlier.
MR. BRENNAN: Did something significant come back to you about what happened earlier or what you heard?
MS. MCCABE: Yes.
MR. BRENNAN: And what is that?
MS. MCCABE: When Ms. Read stated to myself and the female, "I hit him. I hit him. I hit him."
MR. BRENNAN: And did anything else over the course of that morning come back to you about that moment?
MS. MCCABE: Throughout -- when I was still at Fairview or throughout the day?
MR. BRENNAN: Still at Fairview.
MS. MCCABE: I believe that was maybe the main thing. I can't be sure what time what memories came back.
MR. BRENNAN: When you remembered the defendant's statements to the first responder, did you decide to do something with that information?
MS. MCCABE: Yes, Officer Lank had said if, you know, remembered anything or needed anything before this date, you know, the next the state police came to give him a call.
MR. BRENNAN: Did you?
MS. MCCABE: I did, yes.
MR. BRENNAN: And you knew Officer Lank?
MS. MCCABE: I did, yes.
MR. BRENNAN: Were you comfortable calling him?
MS. MCCABE: Yes, I was.
MR. BRENNAN: Did you tell him the information that you had remembered?
MS. MCCABE: I just asked him to come back to Fairview.
MR. BRENNAN: Did he?
MS. MCCABE: He did, yes.
MR. BRENNAN: When he came back, did you speak to him?
MS. MCCABE: Yes, I did.
MR. BRENNAN: Were you with the group or were you alone?
MS. MCCABE: No, I was with the group.
MR. BRENNAN: Did you tell him what you had remembered?
MS. MCCABE: I did, yes.
MR. BRENNAN: How long did you stay at Fairview for?
MS. MCCABE: I believe somewhere between 11:00, 11:30. I'm being approximately with my times. Officer Proctor called me from the state police.
MR. BRENNAN: Do you know how he got your number?
MS. MCCABE: No.
MR. BRENNAN: Did you have a discussion with him?
MS. MCCABE: He said he would like to come by and question me, and I'm not sure if he said at your house, or if I said I need to go home, because I had four kids at home that were still sleeping. And, you know, I knew that I had to go home to them and eventually break this, you know, news to them and comfort them, and I knew that was going to be a whole other situation to deal with.
MR. BRENNAN: Did you speak to him on the phone before you went home or --
MS. MCCABE: A quick phone call: I'll see you at my house.
MR. BRENNAN: At that point, did you share any information with him?
MS. MCCABE: No, not on the phone.
MR. BRENNAN: Did you return home?
MS. MCCABE: I did, yes.
MR. BRENNAN: Do you remember about what time that was?
MS. MCCABE: I'm going to say 11:30 or after, approximate.
MR. BRENNAN: General?
MS. MCCABE: General, yeah.
MR. BRENNAN: When you got back home, did you have a meeting or speak with Mr. Proctor?
MS. MCCABE: I did, yes.
MR. BRENNAN: Was it a phone call or an in-person conversation?
MS. MCCABE: He came into my house with Officer Bukhenik.
MR. BRENNAN: Him and Trooper Bukhenik came in?
MS. MCCABE: Yes.
MR. BRENNAN: Was there anybody else in your home?
MS. MCCABE: My husband was home, and my brother-in-law Brian Albert came over.
MR. BRENNAN: Did you speak to them?
MS. MCCABE: Yes.
MR. BRENNAN: Did you tell them any additional information at that point?
MS. MCCABE: The troopers or --
MR. BRENNAN: The troopers.
MS. MCCABE: Yes, I know I had said what Karen had said to me, and then she had said, "I hit him. Could I have hit him?" I told them how she showed up at my house. I just basically gave them the events of that morning.
MR. BRENNAN: At that point, did you mention anything about the defendant's broken taillight?
MS. MCCABE: At that conversation, no.
MR. BRENNAN: Did they leave?
MS. MCCABE: They did leave, yes.
MR. BRENNAN: At some point, did they reach out to you again, or did you reach out to them?
MS. MCCABE: At some point. I had another conversation with them a few hours later. I'm not sure if they called me or if I called them. Q Do you know what, generally, the content of that conversation was? A Yes, I had remembered that Karen had told me about her taillight.
MR. BRENNAN: As you're processing that morning, are you trying to think and re-create the event, or are you trying to put it out of your mind?
MS. MCCABE: I couldn't get it out of my mind.
MR. BRENNAN: While you were at home, did you receive any updates from anybody, Kerry Roberts, or anybody about John?
MS. MCCABE: Yes. When I was still at the Alberts, Kerry had given me word that, you know, John had passed. Then once I got home, I know different friends who were starting to hear.
MR. JACKSON: Objection.
JUDGE CANNONE: Next question.
MR. BRENNAN: Without saying -- without content, were you receiving contacts calls, text messages --
MS. MCCABE: Yes.
MR. BRENNAN: -- from other people?
MS. MCCABE: Yes.
MR. BRENNAN: And were you reaching back out to other people?
MS. MCCABE: Some, yes.
MR. BRENNAN: At some point, did you go over to Meadows Road?
MS. MCCABE: On Sunday, I did, yes.
MR. BRENNAN: Was Sunday the next day?
MS. MCCABE: Yes, it was.
MR. BRENNAN: Why did you go over to Meadows?
MS. MCCABE: Kerry and I went over with my daughter and her daughter to see the family and to offer support and our sympathy.
MR. BRENNAN: You said you and Kerry, how did you get there?
MS. MCCABE: Kerry picked me up.
MR. BRENNAN: Prior to that evening, you and Kerry you described weren't friends or familiar?
MS. MCCABE: Correct.
MR. BRENNAN: Were things changing?
MS. MCCABE: Yes, rapidly.
MR. BRENNAN: When she picked you up, who else did you pick up with you?
MS. MCCABE: My daughter, who is (c) 's friend.
MR. BRENNAN: And was anybody else or any of Ms. Roberts' family in the car?
MS. MCCABE: Yes, her daughter was in the car as well.
MR. BRENNAN: So it was you, Ms. Roberts, and your two daughters?
MS. MCCABE: Yes.
MR. BRENNAN: You said you went to Meadows.
MS. MCCABE: Yes.
MR. BRENNAN: Why did you go there?
MS. MCCABE: To offer our condolences, sympathy, support, to be with the family. I mean, I loved them.
MR. BRENNAN: Were they staying at Meadows?
MS. MCCABE: They were at Meadows, yes.
MR. BRENNAN: When you went there that next day, can you describe the traffic and the people that were there?
MS. MCCABE: There was a houseful of family, friends, coworkers, loved ones. I mean, the car repairman. Like, anyone and everyone.
MR. BRENNAN: Did you ever see the defendant?
MS. MCCABE: No.
MR. BRENNAN: While you were at the house, did you have a chance to speak to Mrs. O'Keefe?
MS. MCCABE: Yes, I did.
MR. BRENNAN: At some point that day, did you leave the house?
MS. MCCABE: Yes.
MR. BRENNAN: Who did you leave with?
MS. MCCABE: Kerry and my daughter stayed to be with (c) , and we left with her daughter.
MR. BRENNAN: Where did you go?
MS. MCCABE: We were heading home, but then we ended up dropping off her daughter at her friend's house.
MR. BRENNAN: Now, who's her daughter?
MS. MCCABE: Kerry's --
MR. BRENNAN: Don't give me a name. Do you know her daughter?
MS. MCCABE: Kerry's daughter, yes.
MR. BRENNAN: Was Kerry's daughter friends within any of the Lanks?
MS. MCCABE: Yes, Kerry's daughter is good friends with Mike Lank's daughter.
MR. BRENNAN: When Ms. Roberts drove over to Mr. and Mrs. Lank's house, did you meet anybody?
MS. MCCABE: Yes, her daughter, Kerry's daughter, went in the house, and Mrs. Lank came out. Her and Kerry are very good friends. So she came out to offer support and condolences.
MR. BRENNAN: Was it still cold outside?
MS. MCCABE: Yes, it was freezing.
MR. BRENNAN: When she was offering her support, was she inside or outside the car?
MS. MCCABE: She jumped into the back seat.
MR. BRENNAN: During that time you spent with Officer Lank's wife, did you ever go into the house?
MS. MCCABE: I have a faint memory. I think I went in and used the bathroom at one point.
MR. BRENNAN: When you were having a conversation with Mr. Lank's wife, were you talking about what had happened?
MS. MCCABE: Yes. She was -- Kerry was just explaining the morning, the phone calls, the scene, things like that.
MR. BRENNAN: Were you trying to get any type of inside information or push the investigation in any particular direction?
MS. MCCABE: No, I didn't speak much. It was mostly just Kerry and Trish, and Trish was just being a supportive friend to Kerry.
MR. BRENNAN: At some point, did you get together with Ms. Roberts and try to memorialize what you had saw or thought that morning?
MS. MCCABE: Yes.
MR. BRENNAN: Why did you do that?
MS. MCCABE: Peg had asked Kerry to do a timeline. So Kerry came over and we were sitting down talking about it, and so my sister was there and she said that she would jot it down for us.
MR. BRENNAN: So when you got together, it was at the request of Mrs. O'Keefe?
MS. MCCABE: Yes.
MR. BRENNAN: When she made that request, and she asked you to do that, did you question why?
MS. MCCABE: No, I just -- she wanted us to do it so I did it.
MR. BRENNAN: Why?
MS. MCCABE: She wanted us to remember and try to jot down everything we remembered so we wouldn't forget.
MR. JACKSON: Objection.
JUDGE CANNONE: So I'm going to sustain as to what she knows.
MR. JACKSON: Move to strike.
JUDGE CANNONE: Jurors, disregard that statement.
MR. BRENNAN: Now, did you speak to officers further in the future?
MS. MCCABE: Yes.
MR. BRENNAN: Can you count how many times you spoke with the police or the interviews that you had?
MS. MCCABE: There were a lot, or a good amount I should say.
MR. BRENNAN: At some point, did any of the police officers ask if they could take your phone and copy everything on it?
MS. MCCABE: Yes.
MR. BRENNAN: Did you have any hesitation about that?
MR. JACKSON: Objection.
JUDGE CANNONE: Ask it differently.
MR. BRENNAN: Were you cooperative?
MS. MCCABE: Yes.
MR. BRENNAN: Why?
MS. MCCABE: I wanted to help in any way I could.
MR. BRENNAN: May I approach?
JUDGE CANNONE: Yes.
MR. BRENNAN: Handing you a piece of paper. Do you recognize that?
MS. MCCABE: Yes, I do.
MR. BRENNAN: And what is it?
MS. MCCABE: That's my signature.
MR. BRENNAN: Do you know what that document is?
MS. MCCABE: Yes, it's the consent form that I signed from my phone.
MR. BRENNAN: I'd like to introduce this as an exhibit.
JUDGE CANNONE: Any objection?
MR. JACKSON: Yes, Your Honor, but we can do it at sidebar. I have no objection to the identification of it. Moving it is an exhibit, I do have an objection.
JUDGE CANNONE: I'll see you at sidebar, then.
(Sidebar commences:
JUDGE CANNONE: May I see it?
MR. BRENNAN: Yes.
JUDGE CANNONE: Okay.
MR. JACKSON: Thank you, Your Honor. As a matter of consistency, this is a police report. Like any other police report, it's hearsay. It's not admissible. I have no issue with the fact that Ms. McCabe has addressed it and identified it, but it shouldn't be an exhibit. I have no problem with this identification.
MR. BRENNAN: I will mark it for identification. If it comes up on cross-examination, I may move to admit it. If it doesn't, I agree.
MR. JACKSON: That's fine.
JUDGE CANNONE: All right. So I'll have Madam Court Reporter mark it.
end of sidebar.)
JUDGE CANNONE: Madam Court Reporter, that will be for identification, please.
(Whereupon Exhibit E, was marked for identification.)
MR. BRENNAN: After that day when you met with Ms. Roberts and you tried to memorialize your memory about what happened, after that day have you discussed what happened that morning with other people?
MS. MCCABE: Yes.
MR. BRENNAN: And have you discussed it with police over time?
MS. MCCABE: Yes.
MR. BRENNAN: I have no further questions at this time.
JUDGE CANNONE: Okay.