Commonwealth v. Read — Trial ArchiveJennifer McCabe — Recross
1,128 linesMR. JACKSON: (By Mr. Jackson) Ms. McCabe, when you first saw Ms. Read's SUV pull up very shortly thereafter, you sent a text to John O'Keefe, correct?
MS. MCCABE: I walked to the door, saw the car, and that's when I sent the text, yes.
MR. JACKSON: Right. So you walked up to the door, saw the SUV outside, an then texted him something at that -- basically while you were standing in the door?
MS. MCCABE: I believe so, yes.
MR. JACKSON: What did you text him?
MS. MCCABE: Here.
MR. JACKSON: Okay. That was -- do you remember the time?
MS. MCCABE: I don't know.
MR. JACKSON: Would it refresh your recollection if you were to look at a series of text messages contained in a Cellebrite report? I think you've seen this before.
MS. MCCABE: Sure.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Let me ask one foundational question before I give this to the witness.
JUDGE CANNONE: Okay.
MR. JACKSON: Ms. McCabe, I'm going to ask you about a series of text messages. It's not a memory contest in terms of the timing. I'm going to ask you about probably five or so. All of those purport to be contained in here. Do you remember the times of those five texts?
MS. MCCABE: I don't off the top of my head.
MR. JACKSON: Do you think it would refresh your recollection to look at all of those in one fell swoop as you look at this document so I don't have to go back and forth?
JUDGE CANNONE: Are these in evidence?
MR. JACKSON: This is not in evidence to my knowledge. Not yet.
JUDGE CANNONE: Would it help you to remember?
MS. MCCABE: Yes.
JUDGE CANNONE: All right. Why don't you bring it to Ms. McCabe.
MS. MCCABE: Thank you.
MR. JACKSON: Thank you. Ms. McCabe, if you wouldn't mind, take a look at the tabs -- not that whole document - it's too dense. Take a look at the tabs and go in reverse chronological order and see if that refreshes your recollection about the time and content of text messages that you sent to Mr. O'Keefe that early morning of January 29?
MS. MCCABE: Okay. Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. A I'm not going to have to remember the exact times of all five, am I?
MR. JACKSON: I'll help.
MS. MCCABE: Okay. Thank you.
MR. JACKSON: Ms. McCabe, did you see a text on here that was consistent with your memory that you texted Karen?
MS. MCCABE: Yes.
MR. JACKSON: And was that at 12:14 -- I'm sorry at 12:27 a.m.?
MS. MCCABE: I don't know exactly. I'm assuming if it's on that paper.
MR. JACKSON: If I may have just a moment, Your Honor?
JUDGE CANNONE: Sure. Why don't I see counsel at sidebar for just a moment? Why don't you bring it with you, Mr. Jackson? Bring it with you. Bring it with you.
(Sidebar commences:
MR. BRENNAN: I will stipulate to the times if read correctly on that report even if she doesn't have a memory. If he wants to use the times in the report, it's in evidence in a different form, anyways.
JUDGE CANNONE: I thought it was in through -- it was testified with Guarino.
MR. BRENNAN: It is. It's just a different form of report, but it's the same information.
JUDGE CANNONE: So it's in evidence.
MR. BRENNAN: It's in evidence.
JUDGE CANNONE: That's why I asked.
MR. JACKSON: The information is in evidence, not this document.
MR. ALESSI: It's buried in a report but it is in --
MR. JACKSON: And I'll accept that stipulation.
MR. BRENNAN: So if he wants to ask --
JUDGE CANNONE: Because she's never going to remember three years later.
MR. JACKSON: Understand.
MR. BRENNAN: I'll stipulate as to the times if he reads the times.
JUDGE CANNONE: Thank you. Just move things along. I appreciate it.
MR. JACKSON: Thank you.
MR. ALESSI: Thank you, Mr. Brennan.
end of sidebar.)
JUDGE CANNONE: Ms. McCabe, we're going to make it a little bit easier for you, okay?
MS. MCCABE: Thank you.
MR. BRENNAN: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Your Honor, I would offer the following stipulation: At 12:14:27 on January 29, 2022, a text message from Jen McCabe to -- I'm sorry text message from John O'Keefe's phone to Jen McCabe's phone, "Where to?" At 1220 -- all of these are on January 29, 2022. At 12:27:33, from Jennifer McCabe's phone to John O'Keefe's phone, "Here exclamation point question mark." Same date, 12:31 and 47 seconds, from Jen McCabe's phone to John O'Keefe's phone, "Pull behind me." Same date, 12:40 and 31 seconds, from Jen McCabe's phone to John's -- John O'Keefe's phone, "Hello." 12:42 and nine seconds, text message from Jennifer McCabe's phone to John O'Keefe's phone. "Where are the letter U."
JUDGE CANNONE: Okay. Thank you.
MR. JACKSON: Finally, 12:45 and 53 seconds, from Jen McCabe's phone to John O'Keefe's phone, "Hello." I would offer the stipulation that those are correct times and dates and contents of text messages between John O'Keefe's phone and Jennifer McCabe's phone on January 29, 2022.
JUDGE CANNONE: All right. And that is what you were agreeing to, Mr. Brennan.
MR. BRENNAN: Yes, Your Honor, as contained in the Cellebrite report.
JUDGE CANNONE: All right, folks. So I told you yesterday about a stipulation, when I talked about something in the parking lot, this is similar. So what you just heard, both lawyers agree that that is information contained in a Cellebrite report.
MR. JACKSON: Thank you, Your Honor. May I continue?
JUDGE CANNONE: Yes.
MR. JACKSON: At some point, you indicated that -- and by the way, Ms. McCabe, at 12:27, it's now been stipulated to, you texted a single word "Here exclamation point question mark," correct?
MS. MCCABE: Yes.
MR. JACKSON: You indicate that you saw the SUV move up after it was in front of the 34 Fairview residence, it moved up some number of feet, correct?
MS. MCCABE: The next time I looked, it was at a different location.
MR. JACKSON: Right. Now, you did not see the white Jeep move from the place that you originally saw it in front of the mailbox, correct?
MS. MCCABE: I never looked out at the white Jeep.
MR. JACKSON: But you never saw that move ever?
MS. MCCABE: No.
MR. JACKSON: As a matter fact, Mr. Higgins -- that Jeep was in the same spot while Mr. Higgins was inside the residence until he left, correct?
MS. MCCABE: That's what I would assume, yes.
MR. JACKSON: Okay. And you never saw him go out and move his car, come back in, or anything like that?
MS. MCCABE: I never did, no.
MR. JACKSON: After you -- it's fair to say that once you noted that the SUV, Ms. Read's SUV was in front of the location, you started paying some attention to it?
MS. MCCABE: I went to the door a few times to lookout, yes.
MR. JACKSON: As a matter of fact in the course of about 19 minutes, you went to the door no fewer than five times, correct?
MS. MCCABE: I'm not sure if it was five.
MR. JACKSON: You've indicated previously that for every time you went to the door and saw the SUV, you texted something which are the texts contained in the documents that were just stipulated to; is that right?
MS. MCCABE: I did text five times; you are correct.
MR. JACKSON: Okay. So it's fair to say if you texted five times, then you went to the door five times, if those were associated with one another, you walk up, look out the door, see the SUV, and text something: Here. Pull behind me. Where are you? Those texts, correct?
MS. MCCABE: I remember going to the front door, seeing the car, and texting "Here." When I went to the door the second time, the car had moved up towards the flagpole, and I texted, "Pull behind me," because I thought did they not know where to park. Did they think they were at the wrong house?
MR. JACKSON: So my question is this, every time you went to the door you texted something?
MS. MCCABE: I'm not sure that I did, yes. I'm not sure that I did, sorry.
MR. JACKSON: Do you remember a year ago testifying that every single time you texted, you indicated that you looked out at the SUV and saw something that prompted you to text something?
MS. MCCABE: Am I aware that I said that?
MR. JACKSON: Correct.
MS. MCCABE: Could you --
MR. JACKSON: That you testified to that.
MS. MCCABE: Could you show that to me, please?
MR. JACKSON: Sure.
MS. MCCABE: Thank you.
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Take a look at the highlighted portion and just read that to yourself. Let me know you when you're finished.
MS. MCCABE: (Witness complies.) Okay.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Ms. McCabe, does that refresh your recollection about the issue we were just talking about?
MS. MCCABE: I see what's on -- what's written down, yes.
MR. JACKSON: Okay. Did you testify in answers to the following question: "And as a matter fact, you looked every single time that you texted, you indicated that you looked out at the SUV and saw something that prompted you to text something, correct?" Answer, "Correct."
MS. MCCABE: I answered correct to that, yes.
MR. JACKSON: All right. So if you looked out -- I'm sorry. If you texted five times, that's all I'm getting to, you went to the door about five times?
MS. MCCABE: I'm not sure. I remember definitely going twice. And again, if I misstated or I said I went five times, four times, I apologize.
MR. JACKSON: Do you think this testimony is an error?
MS. MCCABE: No, I don't think. I'm thinking with my memory, it was three years ago, and I'm thinking that maybe I wasn't clear on that detail of how many times that I went to the door.
MR. JACKSON: And certainly --
MS. MCCABE: What I can tell you I'm clear on is that I did go twice, and I saw it -- I saw it straight ahead, I saw it at the flagpole, and a third time further up. I cannot say with certainty with my memory today that I was up at that door every single time. I'm sorry.
MR. JACKSON: And by the way, when you testified as you just saw, that was a year ago, correct?
MS. MCCABE: Yes.
MR. JACKSON: A year earlier and a year closer to the event, correct?
MS. MCCABE: Yes, it was.
MR. JACKSON: Your memory would have been a little bit fresher then than it is now, a year later?
MS. MCCABE: I don't think I can compare my memory then to now.
MR. JACKSON: You can't compare your memory? You think your memory gets better with time, or --
MS. MCCABE: Well, some things, unfortunately, I think about every single day with this case, the trauma of it, and what I experienced and went through. And there are some things that I am certain that I will never forget, and I know for sure where the car was, and I know for sure I sent those two texts, but I apologize if I misstated I went up more than I did. I'm just trying to give you what I remember today.
MR. JACKSON: Let's talk about those texts, and you looking out the door. You did approach the door and you saw that the vehicle was there the initial time, correct? That's one.
MS. MCCABE: When I texted here, yes.
MR. JACKSON: And you texted, here, exclamation point, question mark; is that right?
MS. MCCABE: Correct.
MR. JACKSON: And you indicated that when you first saw the vehicle it was straight out of head view in front of the door and it was stationary; is that right?
MS. MCCABE: Yes.
MR. JACKSON: I think you said you went back to the door and you saw that it had moved up or a little bit; isn't that right?
MS. MCCABE: Yes.
MR. JACKSON: Toward the flagpole; is that right?
MS. MCCABE: It was at the flagpole, yes.
MR. JACKSON: And when you saw that it had moved up toward the flagpole, then you texted again at 12:40, which has been stipulated to, hello; is that right?
MS. MCCABE: When I saw it move up to the flagpole, I believe I texted, "Pull behind me."
MR. JACKSON: And with the second time -- and by the way, it was my mistake. I jumped over one. It was 12:31:47, which we stipulated to, "Pull behind me." That's when the SUV was up closer to the flagpole, correct?
MS. MCCABE: I believe so, yes.
MR. JACKSON: Then you went yet again at 12:40 and saw the SUV yet again and texted, "Hello."
MS. MCCABE: I'm not sure if that was when I texted hello.
MR. JACKSON: But you did see that the SUV had moved again?
MS. MCCABE: Yes.
MR. JACKSON: Now where was it?
MS. MCCABE: At first, it was straight ahead. Then it was at the flagpole, and then it was further up.
MR. JACKSON: Then at 12:42, two minutes later, you texted, "Where are you," correct?
MS. MCCABE: Yes.
MR. JACKSON: At that point, it was still out by the flagpole?
MS. MCCABE: No, I'm not saying that it was still outside.
MR. JACKSON: Where was it?
MS. MCCABE: I'm not sure where the vehicle was.
MR. JACKSON: At 12:45, you texted yet again, "Hello," is that right?
MS. MCCABE: Yes, I did.
MR. JACKSON: You indicated that that was -- you texted hello the last you saw the vehicle; is that right?
MS. MCCABE: I'm not saying that today, no.
MR. JACKSON: Well, did you say it previously?
MS. MCCABE: In my testimony, did I say that the last time I texted? Do you have that written that I could see?
MR. JACKSON: You just read it.
MS. MCCABE: Well, that was your question that you had read to me. I never came out and said that.
MR. JACKSON: Ms. McCabe, I asked you if you testified to that a year ago. That's my question. Did you testify to that a year ago that when you went -- every single time you went to the door, you texted something because seeing the vehicle prompted you to text something to John?
MS. MCCABE: That's a summary of maybe the --
MR. JACKSON: Did you testify to that a year ago?
MS. MCCABE: To what? That when I went to the door? Yeah, at different times when I went to the door, I did text, yes.
MR. JACKSON: All right. And then you testified as well that you went to the door a final time, and saw that the SUV was gone, it had left, correct?
MS. MCCABE: Yes, at one point I did.
MR. JACKSON: That was just a couple of minutes after your last text at 12:45; is that right?
MS. MCCABE: I'm not sure of the time.
MR. JACKSON: As a matter of fact, you've testified previously that it was around 12:50 that you first -- I'm sorry -- that you last went to the door and noted that the car was completely gone; is that right?
MS. MCCABE: I'm not sure of that.
MR. JACKSON: You're not sure of that?
MS. MCCABE: No, if you could show me, I'd appreciate it.
MR. JACKSON: At some point, did you note that the vehicle was gone? Let's get to that.
MS. MCCABE: Yes.
MR. JACKSON: Around what time was that?
MS. MCCABE: I do not know.
MR. JACKSON: 12:45, a little bit before, a little after?
MS. MCCABE: I'm not sure. I can't give a time.
MR. JACKSON: Would it refresh your recollection as to when you testified to that particular time last year?
MS. MCCABE: Sure.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: The highlighted portions, Ms. McCabe.
MS. MCCABE: Thank you (reading).
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Ms. McCabe, does that refresh your recollection as to what time last year you indicated that you went to the door and saw that the SUV was gone?
MS. MCCABE: It says on the paper that I was asked if after 12:45 it was gone, and I answered correct.
MR. JACKSON: Okay.
MS. MCCABE: I never gave a time.
MR. JACKSON: All right. And that coincides with the last hello that you texted to John's phone, correct?
MS. MCCABE: Again, I don't have that paper in front of me. Is that the time?
MR. JACKSON: That's the stipulation. That's what -- you don't need to worry about that.
MS. MCCABE: Okay.
MR. JACKSON: That's been stipulated to you. Your last hello text was at 12:45.
MS. MCCABE: Okay, yes.
MR. JACKSON: So that coincides, that testimony from last year, coincides with your last text message saying "hello" you noted that the SUV at that point had gone, it had left, correct?
MS. MCCABE: Correct.
MR. JACKSON: So if I hear your testimony correctly, you saw the SUV in position one?
MS. MCCABE: Yes.
MR. JACKSON: There was a text or something or two maybe. Then you saw it in position two. You went back to the door and noted that SUV had moved, and it was now closer to the flagpole, correct?
MS. MCCABE: Well, you've just ask two questions.
MR. JACKSON: It had moved closer to the flagpole.
MS. MCCABE: The first question is you said I saw it and I sent a text or two. I know I just said one here.
MR. JACKSON: Okay. Then you saw it a second time?
MS. MCCABE: Correct.
MR. JACKSON: And now it's closer to the flagpole?
MS. MCCABE: Yes, correct.
MR. JACKSON: And there's texting going on. I'm not getting down to the minute of the texts, but there's going on. You're sending texts?
MS. MCCABE: I'm sending, yes.
MR. JACKSON: Then you went back to the door third time and saw that it had moved beyond the flagpole, correct?
MS. MCCABE: Correct.
MR. JACKSON: Then, according to your testimony last year, you went back to the door at least a fourth time to see that was gone, correct? A I believe so, yes.
MR. JACKSON: Okay. So at bare minimum based on your testimony today, you were at the door, looking out the window, at that portion of either the yard directly in front of you, in front of the house, or toward the flagpole, or beyond the flagpole four times, correct?
MS. MCCABE: From last year's testimony. But what I remember today with certainty is twice.
MR. JACKSON: That's not what I asked.
JUDGE CANNONE: You need to let her answer the question. Answer your question, please.
MR. JACKSON: Go ahead.
MS. MCCABE: Okay.
MS. MCCABE: What I remember with certainty is looking at it out front, at the flagpole, and beyond. I don't remember how many times I went up to the door. I was back and forth.
MR. JACKSON: Right. But according to you, you saw the car in three different positions, correct?
MS. MCCABE: Correct.
MR. JACKSON: So that's at least three times to the door, correct?
MS. MCCABE: Correct.
MR. JACKSON: And you saw the car gone, right?
MS. MCCABE: Correct.
MR. JACKSON: Three plus one is four, correct?
MS. MCCABE: Correct.
MR. JACKSON: So now you're telling us that you went to the door a minimum of four times and looked across that yard at the SUV, correct?
MS. MCCABE: Correct.
MR. JACKSON: Okay. You had a clear view of that SUV as you looked out the storm door every time you went to the door, didn't you?
MS. MCCABE: It was dark and snowing, but I could see a vehicle out there, yes.
MR. JACKSON: As a matter of fact, you've indicated that there was a clear view, there was nothing obstructing your vision, correct?
MS. MCCABE: No, there was nothing but the weather conditions.
MR. JACKSON: And you indicated that -- and by the way, the blizzard had basically just started. There was a dusting on the ground.
MS. MCCABE: It was snowing. It was accumulating.
MR. JACKSON: Right.
MS. MCCABE: Yeah.
MR. JACKSON: But it was early?
MS. MCCABE: Correct.
MR. JACKSON: Early in the storm?
MS. MCCABE: Oh, yes, absolutely.
MR. JACKSON: Right. And when asked about whether or not you had a view -- well, let me ask it a different way. In terms of your view of the SUV and the distance from the storm door to the SUV to that curb line, there was nothing obstructing your view? You had a clear view of that, a good view of the SUV, correct?
MS. MCCABE: When I looked out the window, I could see the SUV in front of me, yes.
MR. JACKSON: At no time during any of this interaction with the door, meaning going back-and-forth through the storm door, texting, looking outside, seeing the SUV in position one, seeing the SUV in position two, seeing the SUV in position three, at no time did you hear anything that -- any noise that was unusual, did you?
MS. MCCABE: No, I didn't.
MR. JACKSON: You didn't hear any screaming?
MS. MCCABE: No.
MR. JACKSON: You didn't hear any yelling?
MS. MCCABE: No.
MR. JACKSON: No loud voices?
MS. MCCABE: No.
MR. JACKSON: No foul language?
MS. MCCABE: No.
MR. JACKSON: You didn't hear a door slam?
MS. MCCABE: No.
MR. JACKSON: You didn't hear a verbal argument or a fight of any kind?
MS. MCCABE: No.
MR. JACKSON: You didn't hear a revving engine?
MS. MCCABE: No.
MR. JACKSON: You didn't hear the squealing tires or the scraping of tires on pavement?
MS. MCCABE: No.
MR. JACKSON: You didn't hear a collision take place?
MS. MCCABE: No.
MR. JACKSON: Or a crash?
MS. MCCABE: No.
MR. JACKSON: Or screams for help?
MS. MCCABE: No.
MR. JACKSON: Moaning, groaning as if someone was in distress?
MS. MCCABE: No.
MR. JACKSON: As you looked at the SUV, the first time, you already indicated that you had a clear view straight out the door, right, it's right in front of the front door as the crow flies, right? It's not at an angle.
MS. MCCABE: Right there, correct.
MR. JACKSON: You also previously indicated that you saw tire tracks in the roadway?
MS. MCCABE: Yes.
MR. JACKSON: In that very, very light dusting of snow, the accumulation that you talked about, you saw tire tracks of some sort?
MS. MCCABE: Yes.
MR. JACKSON: So that's down on the ground, beyond the yard, somewhere in the roadway?
MS. MCCABE: In the street, correct.
MR. JACKSON: You had a good view of those tire tracks as well, correct?
MS. MCCABE: Yes.
MR. JACKSON: As a matter of fact, you were able to describe those as sort of almost a wave I think you once said?
MS. MCCABE: Yeah, across the street I could see it because of the streetlight that was across the street.
MR. JACKSON: Okay. And that presented at least enough illumination based on your view, you could see the tire tracks in the snow?
MS. MCCABE: Yes, over to left, yes.
MR. JACKSON: And you detailed not just the shape of those tire tracks as being sort of like a wave, but where those tire tracks were, correct?
MS. MCCABE: Yes.
MR. JACKSON: Where did you see them?
MS. MCCABE: I believe over to the left if I'm looking out straight.
MR. JACKSON: So if you're looking outside at the SUV -- I'm just going to turn my back to the jurors for a second for a different perspective. If you're looking outside the door, when you say straight out, the SUV is straight outside, when you say to the left, you mean to the left of the SUV on the ground, that's where you saw the tire tracks?
MS. MCCABE: Yes.
MR. JACKSON: Like somebody might parallel park or something?
MS. MCCABE: Kind of wave, yeah. I can't really explain what it was. I just saw it.
MR. JACKSON: You weren't paying special attention, you weren't looking for tire tracks, were you?
MS. MCCABE: No, when I glanced out, I saw it.
MR. JACKSON: You weren't looking for anything in the roadway at that point. You glanced out. There was something in your peripheral vision and made note of it?
MS. MCCABE: Yes.
MR. JACKSON: And the only thing between you and the SUV as you looked out was the lawn?
MS. MCCABE: Correct.
MR. JACKSON: There's no ditches or hills in that lawn. It's a flat lawn, correct?
MS. MCCABE: I wasn't looking at the ground. I was just kind of like looking like I am at you right now - straight.
MR. JACKSON: You know that lawn. You've been to that house 100 times, 500 times. No ditches or berms or hills or mountains on that lawn. It's just a flat lawn, right?
MS. MCCABE: I guess you could characterize it as flat, yeah.
MR. JACKSON: Can we take a look --
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Can you take a look at that photograph --
MS. MCCABE: Sure.
MR. JACKSON: -- photograph for a quick second and tell me if you recognize it?
MS. MCCABE: I do, yes.
MR. JACKSON: What do you recognize that as being?
MS. MCCABE: 34 Fairview.
MR. JACKSON: That's the same photograph with just a little markation that you saw a few minutes ago?
MS. MCCABE: Yes.
MR. JACKSON: Your Honor, I would ask that that be marked as identification next in order.
JUDGE CANNONE: Okay.
MR. JACKSON: Permission to publish?
JUDGE CANNONE: Not for identification, no.
MR. JACKSON: I'm happy to move it into evidence.
MR. BRENNAN: Your Honor, if I may, if it's marked for identification, I wouldn't object to showing it --
JUDGE CANNONE: Okay.
MR. BRENNAN: As a chalk at this point.
JUDGE CANNONE: Okay.
MR. JACKSON: May I publish?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
(Whereupon Exhibit H, Photograph, was marked for identification.)
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. A Thank you.
MR. JACKSON: Here you go.
MR. JACKSON: Mr. Wolk, can you get the video. Thank you.
MR. JACKSON: What's depicted in that photograph?
MS. MCCABE: 34 Fairview.
MR. JACKSON: Do you see the front door that you went in?
MS. MCCABE: I do, yes.
MR. JACKSON: Can you point it out to the jurors, please?
MS. MCCABE: Sure. Right there.
MR. JACKSON: The one with the brick steps leading up to it?
MS. MCCABE: Yes.
MR. JACKSON: Now with this perspective, can you point out the side door?
MS. MCCABE: Sure.
MR. JACKSON: That looks like a screen door just to the right of the hedges?
MS. MCCABE: Yes.
MR. JACKSON: With that perspective, can you point out the garage door?
MS. MCCABE: (Witness complies) or that one, sorry.
MR. JACKSON: Just to the right of the window inside that recess of the home?
MS. MCCABE: Yes.
MR. JACKSON: And does that fairly and accurately depict the lawn as it was on January 28, 29, other than the fact that it's different weather --
MS. MCCABE: Right.
MR. JACKSON: -- the shape of the lawn?
MS. MCCABE: Yes.
MR. JACKSON: Okay. Thank you.
MR. JACKSON: You can take that down, Mr. Wolk.
JUDGE CANNONE: So what was that marked as, Madam Court Reporter?
COURT REPORTER: Exhibit H for identification.
JUDGE CANNONE: Thank you.
MR. JACKSON: Your Honor, I would ask to move that in evidence. If we need to take a minute on that, I'm happy to but that is my request.
JUDGE CANNONE: Is there an issue?
MR. BRENNAN: No, I won't object.
(Whereupon Exhibit No. 46, Photograph (Formerly H), was marked as an exhibit.)
MR. JACKSON: Thank you, Your Honor. May I continue, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: The first time you looked out on that lawn to the SUV, you did not see John O'Keefe, did you?
MS. MCCABE: No, I did not.
MR. JACKSON: He was not outside that SUV?
MS. MCCABE: No.
MR. JACKSON: He was not standing or sitting?
MS. MCCABE: Not that I saw.
MR. JACKSON: He certainly wasn't on the ground, was he?
MS. MCCABE: Not that I saw.
MR. JACKSON: The second time you looked out and saw the SUV, now the SUV is more toward the flagpole, correct?
MS. MCCABE: Yes.
MR. JACKSON: And you had a clear field of view between you standing at that door and the SUV. You've already described that view, correct?
MS. MCCABE: I can see the SUV, correct.
MR. JACKSON: And you could see everything in front of the SUV as well, couldn't you?
MS. MCCABE: I just would go to the door and look at the SUV. I wasn't taking in all the surroundings of --
MR. JACKSON: Right. But just like you weren't taking in the surroundings specifically looking for tire tracks when you saw the SUV standing -- sitting right in front of you, you saw through through your peripheral vision, you noted tire tracks?
MS. MCCABE: Yes, and that's lighted where around the SUV was very dark.
MR. JACKSON: I didn't ask you about lighting yet. We'll get to that.
MS. MCCABE: I'm sorry.
MR. JACKSON: You were looking for tire tracks, even though you weren't looking for tire tracks, right?
MS. MCCABE: Yes, I did.
MR. JACKSON: That was something that stood out to you in your peripheral vision looking out, there they are, correct?
MS. MCCABE: Yes, absolutely.
MR. JACKSON: That second time you looked directly at the SUV, there was no obstruction between you and the SUV, you did not see John O'Keefe standing outside the SUV?
MS. MCCABE: No.
MR. JACKSON: He wasn't sitting down?
MS. MCCABE: No.
MR. JACKSON: He wasn't lying down?
MS. MCCABE: No.
MR. JACKSON: You certainly did not see his body in the snow with that flagpole?
MS. MCCABE: No.
MR. JACKSON: And you would've been looking directly toward that flagpole, correct?
MS. MCCABE: I was looking at the vehicle.
MR. JACKSON: Directly toward the flagpole, Ms. McCabe?
MS. MCCABE: I was looking in the direction of the flagpole --
MR. JACKSON: Right.
MS. MCCABE: -- at the vehicle, yes.
MR. JACKSON: Right. And you saw no body in the snow, did you?
MS. MCCABE: I didn't look for a body in the now.
MR. JACKSON: I didn't ask if you looked for one. You weren't looking for tire tracks, either, were you? You saw those.
MS. MCCABE: I did see those, yes.
MR. JACKSON: And you did not see a body in the snow?
MS. MCCABE: No, I did not.
MR. JACKSON: John O'Keefe is 6-foot-2, 216 pounds, brawny guy, big boy, right?
MS. MCCABE: I don't think I'd refer to him as a big boy, but he was tall, yes.
MR. JACKSON: All right. You certainly didn't see him prostrate in the snow the way you found him the next morning, correct, later that morning.
MS. MCCABE: I didn't see anything on the ground, no.
MR. JACKSON: Correct. The third time you looked out toward that SUV, it's still in the direction of the flagpole, but a little further up, a little deeper to the right, correct?
MS. MCCABE: Yes.
MR. JACKSON: Again, looking directly in the direction at least of the flagpole and that area of the yard, you were looking beyond that to the SUV, correct?
MS. MCCABE: Yes.
MR. JACKSON: You did not see John O'Keefe standing outside the vehicle?
MS. MCCABE: I did not, no.
MR. JACKSON: He was not sitting outside the vehicle?
MS. MCCABE: No.
MR. JACKSON: He certainly wasn't lying on the ground, was he?
MS. MCCABE: I didn't see him.
MR. JACKSON: And the last time you looked out, Ms. McCabe, this is now 12:45 or so, the last time you looked out, the SUV was gone; is that right?
MS. MCCABE: Yes.
MR. JACKSON: But you were still looking in that direction because that's the last place you saw the SUV; is that right?
MS. MCCABE: I looked out the window like this (demonstrating). I wasn't searching anywhere, but just glanced out the window, and I didn't see it.
MR. JACKSON: Ms. McCabe, I'm just asking you a direction, not whether or not you were searching. I know you didn't send out a search party. That's not my question. My question is, were you looking toward the area where you last saw the SUV around 12:45 a.m.?
MS. MCCABE: Yes.
MR. JACKSON: That would be directly across the lawn, directly past the flagpole, and directly into the street where you last saw the SUV, correct?
MS. MCCABE: I glanced out, yes, correct.
MR. JACKSON: And the same way you glanced out at the SUV, to use your words, glanced out and saw the tire tracks, right?
MS. MCCABE: Correct, yes.
MR. JACKSON: But you did not see John O'Keefe standing on the lawn?
MS. MCCABE: No.
MR. JACKSON: You did not see him sitting of the lawn?
MS. MCCABE: No.
MR. JACKSON: And you certainly did not see his body lying on the lawn, did you?
MS. MCCABE: No, I did not.
MR. JACKSON: Ultimately, you left the location that night the gathering at 34 Fairview, is that right, you didn't spend the night there?
MS. MCCABE: No, I went home.
MR. JACKSON: About what time was it that you left the location?
MS. MCCABE: Approximately, it was after 1:30. Approximately 1:30, 1:45. Q So this is maybe an hour later, later than what we've just been discussing? A Yes.
MR. JACKSON: Who did you leave with?
MS. MCCABE: I left with my husband Matt and Julie Nagel and Sarah Levinson.
MR. JACKSON: Who was driving?
MS. MCCABE: Sorry. My husband Matt was driving.
MR. JACKSON: And where was Sarah Levinson and Julie Nagel sitting in that SUV?
MS. MCCABE: They were in the backseat.
MR. JACKSON: By the way, what kind of SUV were you in that night?
MS. MCCABE: A Yukon.
MR. JACKSON: Four door?
MS. MCCABE: Big -- yeah --
MR. JACKSON: Extended seating?
MS. MCCABE: Yes.
MR. JACKSON: When the SUV pulled out of the driveway -- it was in the driveway?
MS. MCCABE: Yes.
MR. JACKSON: When the SUV backed out of the driveway doing a three point turn, backed out the driveway, did it go toward Chapman or did it go toward Cedarcrest?
MS. MCCABE: It went towards Chapman.
MR. JACKSON: So as you backed out of the driveway, you would have been heading up toward the flagpole side of the property rather than back toward the driveway side of the property, correct?
MS. MCCABE: Correct.
MR. JACKSON: You would have driven directly adjacent to the area where John O'Keefe's body was later discovered at 6:04, 6:03 a.m., correct?
MS. MCCABE: Yes, correct.
MR. JACKSON: You were seated in the passenger seat of the vehicle, not the driver's seat?
MS. MCCABE: Correct.
MR. JACKSON: You were seated in the front of the vehicle, not the backseat?
MS. MCCABE: Correct.
MR. JACKSON: You would have been closest to the yard as you all drove past, correct?
MS. MCCABE: Correct.
MR. JACKSON: That's a newer model Yukon. I'm assuming the headlights automatically turn on at night?
MS. MCCABE: Yes.
MR. JACKSON: The headlights were illuminated?
MS. MCCABE: Yes.
MR. JACKSON: Did your husband Matt, did he turn on the brights, or did he leave the beams on low, or do you know?
MS. MCCABE: I don't know.
MR. JACKSON: But certainly, the area in front of that SUV, that Yukon, was well lit?
MS. MCCABE: The lights were on, yes.
MR. JACKSON: Did not see anything out of the ordinary as you drove right by that location, did you?
MS. MCCABE: I was looking at the backseat when we were driving.
MR. JACKSON: Did you see anything out of the ordinary on that lawn as you drove by in that SUV?
MS. MCCABE: No, because I wasn't looking at the lawn.
MR. JACKSON: You certainly did not see John O'Keefe dressed in dark clothing laying prostrate in the lawn?
MS. MCCABE: No, I did not.
MR. JACKSON: You said that you were turned around talking to the other young ladies in the SUV, Julie Nagel and Sarah Levinson; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You indicated that you were engaged with them about a conversation having to do with bread and maybe peanut butter or something?
MS. MCCABE: Yes.
MR. JACKSON: You didn't as you passed by that location adjacent to where John's body was later discovered, you didn't hear Julie Nagel say anything out of the ordinary about having seen something?
MS. MCCABE: No.
MR. JACKSON: You didn't hear Sarah Levinson say anything out of the ordinary about having seen something?
MS. MCCABE: No.
MR. JACKSON: And according to you, you were turned around directly engaged with both these young ladies as you passed by that area where John's body was later discovered; is that right?
MS. MCCABE: When we pulled out, I turn around, and I was talking to them about the bread and the peanut butter. I'm not sure exactly where we were driving, but it was when we pulled, yes.
MR. JACKSON: You certainly never heard anybody say anything like what was that or anything close to that?
MS. MCCABE: No, I didn't.
MR. JACKSON: I'd like to turn your attention to your arrival back at 34 Fairview just after 6:00 a.m. the next morning. You indicated that the visibility was relatively poor, and that you could not see John O'Keefe on that lawn from your perspective, correct?
MS. MCCABE: It was -- the visibility was extremely poor, and, no, I could not see him.
MR. JACKSON: You were in the front seat passenger side?
MS. MCCABE: Yes, I was.
MR. JACKSON: It was Karen Read who actually saw Mr. O'Keefe and jumped out of the car, and began attending to him immediately, correct?
MS. MCCABE: Karen got out of the car and ran to John O'Keefe.
MR. JACKSON: And you stayed by the car, and Ms. Roberts ran over to assist Ms. Read in giving first-aid initially to Mr. O'Keefe; is that right?
MS. MCCABE: No, that is not. Kerry got out and walked over, and then I got out and walked over.
MR. JACKSON: You indicated that -- well, let me ask a different question. Yesterday, you testified in pretty significant detail that when you got out of the car you could not see anything even close to the flagpole, correct?
MS. MCCABE: Visibility was very bad, yes.
MR. JACKSON: As a matter of fact, you used the term white out conditions; is that right?
MS. MCCABE: Yes, I did.
MR. JACKSON: White out conditions, you basically can't see your hand in front of your face?
MS. MCCABE: I wouldn't say that extreme but I used whiteout as there's just snow coming at you.
MR. JACKSON: You were asked -- specifically asked by Mr. Brennan how close did you to get before you could actually see anything of note where Ms. Read had gone; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You testified yesterday that you could see just merely shadowy figures of Ms. Read and Kerry Roberts, and it wasn't until you got very close over to them that you could see John, in your words?
MS. MCCABE: Correct.
MR. JACKSON: As a matter of fact, you followed that up by saying that that was the first moment once you got basically on the top of them, that was the first moment that you realized that it was John, that there was a body on the ground, correct?
MS. MCCABE: I said as I got close to them. I don't think on top of them.
MR. JACKSON: Fair enough. My words not yours. You did say, quote, very close to them, correct?
MS. MCCABE: I'd have to see it, but --
MR. JACKSON: Well, you just testified to it yesterday. Do you remember saying I had to get very close to them?
MS. MCCABE: I know I said I had got very close to them or close to them, something like that, yes.
MR. JACKSON: I don't have a transcript of yesterday's testimony. I'm sorry. Last year you testified to something very different from that, though, didn't you?
MS. MCCABE: No.
MR. JACKSON: Isn't it true that last year you testified that you got out of the passenger side of the vehicle, which is -- you will agree the furthest side from the lawn as Ms. Roberts is driving toward -- from Chapman toward Crestview -- sorry -- Cedarcrest, correct? A Yes.
MR. JACKSON: You testified that you were on the passenger side, and as you got out of the vehicle, you noted that Karen Read was already at John; is that right?
MS. MCCABE: As I got around and walked around the back of the vehicle, the shadowy figure of Karen had already gotten onto something.
MR. JACKSON: You further testified that as you got out of the vehicle, you noted that she straddled John, lifted up his shirt, lifted up her shirt, and went to lay on him, and Ms. Roberts went over and said she was starting removing snow from John's face, correct?
MR. BRENNAN: Can I have the page and line number?
JUDGE CANNONE: Where are you, Mr. Jackson?
MR. JACKSON: May 17, 2024, RT 114, lines 14 to the bottom onto 115, line 4.
MR. JACKSON: Is that how you testified last year?
MS. MCCABE: I'm sorry. Would you mind just repeating it?
MR. JACKSON: Sure.
MS. MCCABE: Thank you.
MR. JACKSON: You testified in substance that you were on the passenger side of the vehicle, and as you got out, quote, as I got out, end quote, she, Ms. Read, was already at John. You indicated that you saw her straddle him, lift up his shirt, lift up her shirt, and lay on top of him while Ms. Roberts went over and removed snow from his face. That's how you testified last year, correct?
MR. BRENNAN: I object.
JUDGE CANNONE: Is that how you testified last year?
MS. MCCABE: I'm not sure. I know --
JUDGE CANNONE: Next question.
MR. JACKSON: Would it refresh your recollection if you were to look at a copy of your testimony from last year?
MS. MCCABE: I don't think looking at it would refresh my memory. I know I might have used different words, but the bottom line is I got out of the car, went behind the car, went over and Karen had done that.
MR. JACKSON: Ms. McCabe, I'm asking if you think it would -- if you don't have a good recollection of how you testified last year under oath sitting on that witness stand. I'm asking do you think it would you could refresh your recollection to see your transcript?
MS. MCCABE: I don't need to see my transcript. I know what I know, and I know what I remember.
MR. JACKSON: That's not my question. I'm not asking what you remember now. I'm asking how you testified a year ago, ma'am.
MS. MCCABE: Whether I said it was -- as we're fighting over silly words. Whether I said --
MR. JACKSON: Oh, no, no, no.
MS. MCCABE: -- I got out of the car, we were there.
MR. JACKSON: Words matter. They matter a lot.
JUDGE CANNONE: Okay. So remember, Mr. Jackson, no comments. Ms. McCabe, try and answer as best you can.
MS. MCCABE: Okay.
MR. JACKSON: Do you remember exactly how it was you testified last year?
MS. MCCABE: I do not, no.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. A Thank you (reading).
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: Ms. McCabe, does that refresh your recollection as to how you testified last year?
MS. MCCABE: I see what it says I said, but it's a little bit different than what you stated.
MR. JACKSON: Okay. Then let's walk through that. Did you indicate last year that as you got out of the vehicle, that's when you could see what Ms. Read was doing with John O'Keefe, down to the detail of pulling her shirt, and pulling his shirt up to try to go skin to skin.
MR. BRENNAN: I object.
JUDGE CANNONE: Why don't I see you at sidebar? Why don't you bring that with you, Mr. Jackson, please.
(Sidebar commences:
JUDGE CANNONE: All right. What's the objection?
MR. BRENNAN: I'm not trying to interrupt, but it's a paraphrasing of the statement. The statement I do not think is impeachment. I think it's consistent with what she said before. But if Mr. Jackson is going to confront her with the statement, he should read it in its entirety as it was read not taking a piece from line 13 and then forwarding up to the next line. It's causing confusion, and it's not a prior statement. So although I don't think it's impeachment, if he wants to read the entire thing, I have no objection to that. But parsing it is not fair.
MR. JACKSON: I'm happy to read the whole thing.
JUDGE CANNONE: Okay.
end of sidebar.)
JUDGE CANNONE: Now you can go ahead, Mr. Jackson.
MR. JACKSON: Thank you.
MR. JACKSON: Ms. McCabe, is it true that you had the following colloquy last year on this subject? Answer, "I was on the passenger side so as I got out, she was already at John." Question, "So she gets out and essentially makes a bee line over to where John was?" Answer, "Correct." "Question, "And you're getting out of the passenger side, and by the time you come around the car, she's already there." Answer, "Yes." Question, "And when she gets over there, what, if anything, could you see at that point?" Answer, "She straddles John and lifts up his shirt, and then she lifted up her shirt and went to lay on him, and Ms. Roberts went over and she was removing the snow from his face." Is that how you testified last year?
MS. MCCABE: Yes, that's how I answered question.
MR. JACKSON: Okay. Clearly, you didn't indicate last year that it was white out conditions, you could see nothing of the kind, and you had to get quote/unquote very close to him before you could see anything, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained. It's the first word that's problematic, Mr. Jackson.
MR. JACKSON: Yesterday, you testified that it was white out conditions. You had to leave the car, walk all the way over and get, quote/unquote very close to John before you recognized that it was even a body; is that right?
MS. MCCABE: Yes.
MR. JACKSON: But last year, you testified you were still at the car when you noted the detail of Karen basically giving lifesaving aid to John, you can see that clearly all the way from the car, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Is that what you said, Ms. McCabe?
MS. MCCABE: No.
MR. JACKSON: Is there a reason, Ms. McCabe, that you might wish to improve your testimony this year over last year with regard to the distance that you could see Ms. Read engaged with Mr. O'Keefe?
MS. MCCABE: No.
MR. JACKSON: Are you trying to suggest, through your testimony to suggest, that you had no idea that there was a body there, and nobody reasonably could have even seen a body there as you drove by?
MR. BRENNAN: Objection.
JUDGE CANNONE: Is that what you're trying to say, Ms. Read?
MR. JACKSON: Ms. McCabe.
JUDGE CANNONE: McCabe.
MS. MCCABE: Could you repeat the question, please?
MR. JACKSON: I'm not sure. I'll give it a shot. Are you trying to improve your testimony this year over last year to suggest that reasonably nobody could have seen where John was from the car? Is that what you're trying to do?
MS. MCCABE: I'm not trying to improve my testimony, no.
MR. JACKSON: You claimed on direct examination, today as a matter of fact, that Ms. Read looked at you at the scene and said the word -- the phrase "I hit him. I hit him. I hit him." She said it three times, very distinctly, according to your testimony, correct?
MS. MCCABE: She did, yes.
MR. JACKSON: It was so impactful that it had the effect of putting you in some sort of shock and horror; is that right?
MS. MCCABE: I was in shock the whole morning but that statement definitely was a lot.
MR. JACKSON: And that's an incredibly memorable statement for you to have heard and now recounted to us in this trial, correct?
MS. MCCABE: Correct.
MR. JACKSON: Something that you wouldn't easily forget or overlook; is that right?
MS. MCCABE: Something I wouldn't?
MR. JACKSON: Something you would not easily forget or overlook; is that right?
MS. MCCABE: Correct.
MR. JACKSON: As a matter of fact some might say it's the centerpiece of your testimony?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Ms. McCabe, you testified at a grand jury in April of 2022; did you not?
MS. MCCABE: I did, yes.
MR. JACKSON: Before you testified, you took an oath very much like the oath that you took before you testified in this case, correct?
MS. MCCABE: Correct.
MR. JACKSON: You swore to tell the truth, the whole truth, and nothing but the truth so help you God, correct?
MS. MCCABE: Correct.
MR. JACKSON: And that included the whole truth at the state grand jury, correct?
MS. MCCABE: Correct.
MR. JACKSON: That was only weeks, several weeks, but weeks after this incident, April 26 versus January 29, 2022; is that right?
MS. MCCABE: Correct.
MR. JACKSON: Things were much fresher in your mind then than they are now?
MS. MCCABE: I wouldn't necessarily say that.
MR. JACKSON: Especially something as momentous as an admission from my client that she hit him; would you agree?
MS. MCCABE: Would I agree that she said that?
MR. JACKSON: Would you agree that that would be fresh in your mind, something as momentous as that, you wouldn't forget that?
MS. MCCABE: I would never forget.
MR. JACKSON: You wouldn't overlook that?
MS. MCCABE: I will never forget it.
MR. JACKSON: You would not overlook that either, would you, Ms. McCabe?
MS. MCCABE: I answered the questions I was asked.
MR. JACKSON: Could you answer the question I just asked? You're not answering my question. Would you overlook that?
MS. MCCABE: No.
MR. JACKSON: And the reason you wouldn't overlook it is because it was so impactful on you having heard that, not once, not twice, three times, "I hit him. I hit him. I hit him." Is that right?
MS. MCCABE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Can you take a look at that document and tell me if you recognize that?
MS. MCCABE: Yes, I see it.
MR. JACKSON: Is that a transcript of your entire testimony at the grand jury in April 2022?
MS. MCCABE: I believe so, yes.
MR. JACKSON: You reviewed it in the past?
MS. MCCABE: I have read it about a year ago, yes.
MR. JACKSON: You read it in anticipation of your testimony a year ago, correct?
MS. MCCABE: Yes, I reviewed it.
MR. JACKSON: Have you reviewed it in preparation for your testimony today?
MS. MCCABE: No, I haven't.
MR. JACKSON: Ms. McCabe, turn to the page or pages in that transcript where you recount to the grand jurors that my client said, "I hit him. I hit him. I hit him."
MS. MCCABE: This is over 227 pages.
MR. JACKSON: Take your time.
JUDGE CANNONE: How long did you say it was, Ms. McCabe?
MS. MCCABE: 227.
JUDGE CANNONE: Okay. I'm not going to let her read 227 pages.
MR. JACKSON: You reviewed it before, haven't you?
MS. MCCABE: I reviewed it a year ago, yes.
MR. JACKSON: You read the whole thing cover to cover, didn't you?
MS. MCCABE: I skimmed through it.
MR. JACKSON: One of the most important points in your testimony yesterday and today is recounting to these jurors the phrase, "I hit him. I hit him. I hit him." Is that right?
MR. BRENNAN: Objection.
JUDGE CANNONE: To the form of that, I'm sustaining it.
MR. JACKSON: Was it important to you to tell these jurors that you heard my client say, "I hit him," three times?
MS. MCCABE: I answered the questions, and I'm telling the jurors what I know.
MR. JACKSON: Was it important to you before testifying today that you recount to these jurors the phrase, "I hit him," coming out of my client's mouth?
MS. MCCABE: Your client said she hit him, yes.
MR. JACKSON: That's not my question. Listen to my question, Ms. McCabe. Was it important to you before you testified to tell these jurors under oath that my client said, "I hit him," three times?
MS. MCCABE: As a juror -- I mean as a witness, it's important to tell the truth and to answer the question you were asked.
MR. JACKSON: And in point of fact, in your entire grand jury testimony, you never said my client said the words, "I hit him," did you?
MS. MCCABE: Again, it's 227 pages.
MR. JACKSON: Ms. McCabe, you were there. They're your words. I'm not asking you to rehearse something. You were there. Did you tell the grand jurors that my client said, "I hit him?"
MS. MCCABE: I testified a number of times. But I was there the morning of January 29 when your client said, "I hit him. I hit him. I hit him."
MR. JACKSON: Did you tell that to the grand jurors?
MS. MCCABE: I'm not sure.
MR. JACKSON: Because you didn't, did you?
MS. MCCABE: Again, I'm not sure.
MR. JACKSON: Ms. McCabe, you were asked in your grand jury testimony no fewer than a dozen times, twelve times, twelve separate times, you were asked to repeat words that my client said both before, going to, and at the scene at 34 Fairview that morning, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Do you know the answer to that?
MS. MCCABE: No.
MR. JACKSON: You were asked multiple times what my client's words were that you heard her say going to and at the scene, correct?
MS. MCCABE: I was, correct.
MR. JACKSON: And you recounted those words truthfully and honestly at that time, correct?
MS. MCCABE: Correct.
MR. JACKSON: Because you were under the same oath that you're under today?
MS. MCCABE: Correct.
MR. JACKSON: And things were much fresher in your mind then than they are now three and a half years later. Would you agree with that?
MS. MCCABE: "I hit him. I hit him. I hit him," is just as fresh today as it was three years ago.
MR. JACKSON: Turn to page 190 if you wouldn't mind.
MR. JACKSON: Reporting to counsel, lines 10 and 11.
MS. MCCABE: Which line is it? I'm sorry.
MR. JACKSON: Ten and eleven.
MS. MCCABE: (Witness complies.) Okay. I'm sorry.
MR. JACKSON: You recounted what Ms. Read said to you over the phone to the grand jurors, correct?
MS. MCCABE: Correct.
MR. JACKSON: And what she said 4:53 a.m. was, "Did I hit him? Could I have hit him?" She didn't say it; she asked it, correct?
MS. MCCABE: She didn't say that at 4:53.
MR. JACKSON: Did you testify that what Ms. Read sent to you that morning over the phone was, "Could I have hit him? Did I hit him?"
MS. MCCABE: Yes, I did.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: May I have that?
MS. MCCABE: Oh, sure. I just want to verify the page number you're on.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. Why don't you tell Mr. Brennan the page number.
MR. JACKSON: I will with each one.
MR. JACKSON: If you would turn to page 192, line 4. What did you tell the grand jurors my client said in that answer?
MR. BRENNAN: Foundation.
JUDGE CANNONE: What are you talking about?
MR. JACKSON: I'll ask it a different way. Did you answer a question on page 192, line 4 concerning my client's statement?
MS. MCCABE: Did I answer a question?
MR. JACKSON: You were answering a question, correct?
MS. MCCABE: Oh, yes, yes. Sorry.
MR. JACKSON: All right. And the answer that you gave to the grand jurors was, "She said, 'Could I have hit him,'" correct?
MS. MCCABE: Yes, that's part of the answer I gave.
MR. JACKSON: Turn to page 193.
MR. BRENNAN: I'd object.
JUDGE CANNONE: So I don't want to have to see you at sidebar. We need context in order for this to be admissible, Mr. Jackson. I have no idea what that said.
MR. JACKSON: Your Honor, I can make an offer proof at sidebar.
JUDGE CANNONE: Okay. Why don't you come to sidebar.
MR. JACKSON: Sure.
JUDGE CANNONE: And bring that grand jury transcript. Is that the only copy you have?
MR. JACKSON: It's the only one I have. If I may?
(Sidebar commences:
JUDGE CANNONE: All right. You have it open? Okay. Well, you can hold yours, Mr. Jackson.
MR. BRENNAN: I have no objection to the answer, it's just putting it in context of where and when. So this is who is sitting in the driver's seat. I'm in the driver's seat. She's in the passenger. She's yelling. We got to go to Fairview. So I have no problem with the impeachment, just the context.
JUDGE CANNONE: To this, I have no idea when this statement was made. I don't even know the date this statement was made. You said in response to a question, did you answer so.
MR. JACKSON: I'm not reading the entire context because it doesn't matter. My whole point, Your Honor, is that she recounted many statements, twelve different statements, in eight different contexts about -- generally -- about what statements came out of my client's mouth, and none of them were I hit him. So I want to walk through --
JUDGE CANNONE: The only thing she testified at trial at hearing it was at the scene, so this is -- these would be inconsistent statements to that. So that's why you need some context.
MR. JACKSON: Okay. I'll provide a brief context for each one.
end of sidebar.)
MR. JACKSON: May I approach the witness?
JUDGE CANNONE: Yes. Do you have an extra copy for yourself, Mr. Jackson?
MR. JACKSON: I have notes. I think my notes will suffice.
MR. JACKSON: On page 192, line 4, for context, were you talking about a statement that was made in Karen's car on that morning before you got to the scene?
MS. MCCABE: One ninety-two?
MR. JACKSON: One ninety-two, line four.
MS. MCCABE: Yes, that was comment she made in the car.
MR. JACKSON: And she said the phrase -- you recounted that she said the phrase, "Could I have hit him," correct?
MS. MCCABE: Yes, that's part of my answer.
MR. JACKSON: Take a look at page 193, line 1 through 2.
MS. MCCABE: (Witness complies.)
MR. JACKSON: This was also in the context of the conversation that was in Karen's car, correct?
MS. MCCABE: Yes.
MR. JACKSON: And the phrase that you attributed to my client was, "Could I have hit him." It was a question, correct?
MS. MCCABE: Yes.
MR. JACKSON: Page 193, line 23. In the context of being in John's driveway at One Meadows?
MS. MCCABE: Yes.
MR. JACKSON: And you attributed a statement and she's asking if she could have hit him, correct?
MS. MCCABE: Yes, when she showed me her taillight.
MR. JACKSON: Page 201, lines 23 and 24. This is driving to Fairview. She asked, "What if I hit him? Could I have hit him," correct?
MS. MCCABE: Can you tell me the lines?
MR. JACKSON: I'm sorry. Lines 23 and 24, page 201.
MS. MCCABE: Okay. I've read it.
MR. JACKSON: She stated according to you, what if I hit him, could I had hit him, correct?
MS. MCCABE: Yes, she did.
MR. JACKSON: Page 202, top of the page line 1 and 2. Again, in context this is driving to Fairview before arrived at Fairview. And she again, asked, quote, according to you and your testimony in front of the grand jury, "Could I have hit him," correct?
MS. MCCABE: Yes, I see that here as part of my answer.
MR. JACKSON: Then turn to page 208, lines 24 and 25.
MS. MCCABE: I'm sorry. What lines, 24 25?
MR. JACKSON: Lines 24 and 25. Let me know when you --
MS. MCCABE: I've read them.
MR. JACKSON: -- reviewed those. For context, this is at the scene outside Fairview?
MS. MCCABE: Yes.
MR. JACKSON: And you told those grand jurors under oath she asked, "Did I hit him? Could I have hit him?" Correct?
MS. MCCABE: Yes.
MR. JACKSON: On page 208, lines 24 -- I'm sorry 208 and 209, going onto page 209, lines 1 through 3. You actually recounted to the grand jurors a conversation that you said my client had with a female EMT standing right there exactly as you testified to today, female EMT, do you see that?
MS. MCCABE: I do, yes.
MR. JACKSON: And what did you say my client's statements were in front of that female EMT?
MS. MCCABE: In this I say that she said, "Could I have hit him? Is he dead?"
MR. JACKSON: It's actually, "Did I hit him."
MS. MCCABE: Oh, sorry. I missed that part. I apologize. "Did I hit him? Could I have hit him? Is he dead? Is he dead? Is he dead?"
MR. JACKSON: And that was at the scene int front of the female EMT exactly the scene that you are describing that you attributed the three statements to my client to today, correct?
MS. MCCABE: There was many different times when we were talking to different EMTs, the female EMT, the men, the police officers.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. May I have just a moment, Your Honor.
JUDGE CANNONE: Sure.
MR. JACKSON: Ms. McCabe, your full statement at page 208 starting at lines 22 through 25 going onto page 209, down to line 4 was, "So there are different, you know, police officers getting statements from us, and at one point I'm standing with Ms. Read and she's saying, 'Did I hit him? Could I have hit him,' and there was, I believe, and EMT, a female, standing right next to me listening to her yelling, 'Did I hit him? Could I have hit him? Is he dead? Is he dead? Is he dead?' It was pretty much nonstop." That was your testimony before the grand jurors, correct?
MS. MCCABE: Yes, it was.
MR. JACKSON: And that was April 26, 2022, correct?
MS. MCCABE: Correct.
MR. JACKSON: Not one time, not one time, Ms. McCabe, did you utter the phrase, "I hit him," as it relates to my client in front of that grand jury on April 26, 2022, did you? Not once.
MS. MCCABE: I'd have to read through the 227 pages to see.
MR. JACKSON: As you sit here today, do you remember ever saying to those grand jurors she said, "I hit him. I hit him. I hit him," in front of a female EMT?
MS. MCCABE: I've spoken in a few grand juries. Whether -- what I said specifically at different ones, I don't recall at this moment, but I do know that morning your client said, "I hit him. I hit him. I hit him," three times, and there was a female EMT there.
MR. JACKSON: You spoke with Trooper Proctor just the same day, right, January 29?
MS. MCCABE: Yes.
MR. JACKSON: Trooper Proctor was taking notes?
MS. MCCABE: Yes.
MR. JACKSON: About your conversation?
MS. MCCABE: Yes, he was.
MR. JACKSON: You reviewed those notes, as a matter of fact, at some point?
MS. MCCABE: I didn't review his notes. I think I've seen a report at one point or another.
MR. JACKSON: On that very day of January 29, 2022, when you were asked to recount what happened at the scene, who was doing what and who said what, you never told Trooper Proctor that my client said, "I hit him," either, did you?
MS. MCCABE: Oh, I told him, yes, I did.
MR. JACKSON: Did he just leave that out of his report?
MS. MCCABE: I'm not responsible for his report.
MR. JACKSON: No, you're not. But you have read his report?
MR. BRENNAN: Objection.
JUDGE CANNONE: So again, no comments, Mr. Jackson.
MR. JACKSON: You have read his report, right?
MS. MCCABE: I have seen it before, yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes. A Thank you.
MR. JACKSON: You looked at that report for another particular this morning. Do you still recognize it?
MS. MCCABE: Yes, I do.
MR. JACKSON: Can you review that report, scan it, and let me know when you're done?
MS. MCCABE: Okay. Is there something specific I should be looking for?
MR. JACKSON: I don't think you're going to find it, Ms. McCabe.
JUDGE CANNONE: All right. So again, jurors, disregard the comments. So it's question/answer format, only.
MR. JACKSON: My question is do you see the phrase, "I hit him," as it's attributable to my client in that report?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you recall telling Trooper Proctor that my client said, "I hit him. I hit him. I hit him?"
MR. BRENNAN: Objection.
JUDGE CANNONE: Do you recall that?
MS. MCCABE: Yes, I told him.
MR. JACKSON: He was taking notes at the time?
MS. MCCABE: He was taking notes, correct.
MR. JACKSON: Those notes ended up being memorialized in a formal report?
MS. MCCABE: I'm assuming.
MR. JACKSON: Well, it's the report that you're holding.
MR. BRENNAN: I object.
JUDGE CANNONE: Sustained.
MR. JACKSON: Does that appear to be a report of the January 29, 11:35 or so A.M. interview that you did with Michael Proctor?
MS. MCCABE: Yes, it does.
MR. JACKSON: You said you reviewed that report in the past?
MS. MCCABE: Yes, in the past.
MR. JACKSON: And you're aware in no place in that report does the phrase "I hit him" show up anywhere, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Oh, I'm sorry. I'm going to approach the witness. Sorry, Mr. Brennan.
MR. BRENNAN: Sorry.
MR. JACKSON: I'm being vague. I was just grabbing the report back. I'm sorry. May I have just a moment, Your Honor?
JUDGE CANNONE: Sure.
MR. JACKSON: I want to draw your attention to the very early morning hours of January 29, around 4:53 a.m. when you received that phone call from (c) 's phone. Do you have that time and date in mind?
MS. MCCABE: Yes, I do.
MR. JACKSON: My client had told you that John had not come home, correct?
MS. MCCABE: Yes.
MR. JACKSON: And you knew that Ms. Read at that point was awake and looking for John?
MS. MCCABE: I didn't know what -- I just knew that she was awake and screaming.
MR. JACKSON: Right. Because she was worried about where John was?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You've been asked who you communicated with first thing that morning after you received that first call from Ms. Read; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You were asked by Trooper Prince in her formal interview, Trooper Prince interviewed you on February 1, about three days after the incident, correct?
MS. MCCABE: I met with a lot. I don't really remember specific dates.
MR. JACKSON: Do you remember a female trooper?
MS. MCCABE: Yes, I do, actually.
MR. JACKSON: In your house?
MS. MCCABE: Yes.
MR. JACKSON: Or I should say at your house?
MS. MCCABE: Yes.
MR. JACKSON: That was around three days after the incident?
MS. MCCABE: It was a Tuesday maybe, yeah.
MR. JACKSON: I don't know.
MS. MCCABE: I think so, yes, if it's who I'm thinking.
MR. JACKSON: You were also asked at the same grand jury who you communicated with on the morning of January 29. Do you remember that?
MS. MCCABE: Not specifically.
MR. JACKSON: Would it refresh your recollection if you were to take a look at that -- a specific page of that grand jury transcript?
MS. MCCABE: Sure.
JUDGE CANNONE: Do you need a couple of minutes, Mr. Jackson?
MR. JACKSON: I do, Your Honor.
JUDGE CANNONE: So, jurors, why don't you stand up and stretch, okay, and you can, too, Ms. McCabe. Mr. Jackson, do you want a five minute recess?
MR. JACKSON: Sure. That might be nice.
JUDGE CANNONE: All right. We're still going to stop at 4:00, so really five minutes, folks.
(Jury out.)
(Court in recess at 3:28 p.m.)
(Court in session at 3:34 p.m.)
(Defendant is present with counsel.)
JUDGE CANNONE: All right. You're all set, Mr. Jackson.
MR. JACKSON: I am, Your Honor. Thank you.
JUDGE CANNONE: All right. We're bringing the jurors over. Are we still on schedule?
MR. BRENNAN: We are.
(Jury in.)
JUDGE CANNONE: All right. Whenever you're ready, Mr. Jackson.
MR. JACKSON: Thank you, Your Honor.
MR. JACKSON: (By Mr. Jackson) Ms. McCabe, I want to draw your attention back to the morning, later in the morning, after you're back at 34 Fairview, after the police have already cleared the scene, and you're back with your friends and family inside the home at 34 Fairview. We've already talked about the fact that the witnesses were not sequestered in any way, they were not separated in any way by the police; is that right?
MS. MCCABE: We were just sitting together with friends and family, so, yeah, no.
MR. JACKSON: Right. Everybody was -- all friends and family who were in there were free to talk amongst themselves, which you did do, correct?
MS. MCCABE: Yes.
MR. JACKSON: Everybody had the opportunity to say their piece and listen to others say their piece as well?
MS. MCCABE: We had conversations. That was really nothing more that.
MR. JACKSON: At some point, you did -- I think you mentioned this on direct examination, you did reach out to Mike Lank; is that right?
MS. MCCABE: Yes.
MR. JACKSON: Remind us who Michael Lank is in your world, in addition to being a Canton police officer or police sergeant, I think he was at the time, how is he in your world?
MS. MCCABE: He was just a local guy that I, you know, knew, was friendly with.
MR. JACKSON: And had gone to high school with?
MS. MCCABE: No.
MR. JACKSON: Was he -- had he gone to high school?
MS. MCCABE: We weren't in high school at the same time.
MR. JACKSON: Got it. He was about five years ahead of you; is that right?
MS. MCCABE: Yes.
MR. JACKSON: Okay. But you've known him or known of him from basically childhood or young adulthood?
MS. MCCABE: Yeah, I just knew him from around town.
MR. JACKSON: At some point you decided that you were going to call Sergeant Lank back to the scene because there was a piece of information that you were going to provide him again -- sorry -- provide him so he needed to come back again?
MS. MCCABE: Yes.
MR. JACKSON: Ultimately, you called him on his cell phone, right?
MS. MCCABE: I did, yes.
MR. JACKSON: So you were close enough that you had his cell phone number, he had your cell phone number?
MS. MCCABE: No, I didn't have his cell phone number.
MR. JACKSON: Where did you get that number?
MS. MCCABE: I asked Julie Albert for that number.
MR. JACKSON: So Julie has his cell phone number?
MS. MCCABE: Yes, she did.
MR. JACKSON: And Julie is Chris's wife?
MS. MCCABE: Yes.
MR. JACKSON: She was at the location?
MS. MCCABE: Yes.
MR. JACKSON: When I say the location, 34 Fairview that morning?
MS. MCCABE: Yes.
MR. JACKSON: As was Chris?
MS. MCCABE: He came at some point. I don't know if he was there when I called Officer Lank or not.
MR. JACKSON: As was Brian Higgins, correct?
MS. MCCABE: Yes, he was.
MR. JACKSON: He came back over to location as well?
MS. MCCABE: Yes, he did.
MR. JACKSON: As a matter fact, it was Brian Higgins who suggested you reach out to Officer Lank?
MS. MCCABE: I'm not sure if it was him who suggested it.
MR. JACKSON: Someone suggested to you that you reach out to Officer Lank; is that right?
MS. MCCABE: As I was sitting there remembering things, I believe -- you know, I can't say who did or didn't.
MR. JACKSON: So as you're sitting there remembering things, you weren't just remembering things, you were remembering things and then telling others things that you remember?
MS. MCCABE: Oh, absolutely.
MR. JACKSON: So others were absorbing whatever information you were providing to them and vice versa?
MS. MCCABE: No one was really providing me any information because they didn't know what happened. I was --
MR. JACKSON: So you were -- sorry. Go ahead.
MS. MCCABE: I was just sitting there trying to recount what had transpired since I got that 4:53 phone call.
MR. JACKSON: And one of the things that you decided you wanted to tell Sergeant Lank was statement by my client?
MS. MCCABE: Yes.
MR. JACKSON: So you called Sergeant Lank on his cell phone, and you're able to get a hold of him, correct?
MS. MCCABE: Yes.
MR. JACKSON: Whatever he's doing, I'm guessing he was busy at the time?
MS. MCCABE: I don't know what he was doing.
MR. JACKSON: Well, he's a first responder on the death of a police officer case that was just hours old, so he had to have been busy?
MS. MCCABE: I was assume. Again, I don't know what he was doing.
MR. JACKSON: But in fact, after he got your phone call, he dropped everything and headed back to 34 Fairview, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did he come back to 34 Fairview quickly?
MS. MCCABE: He was there fairly quickly, yes.
MR. JACKSON: And that was at your request?
MS. MCCABE: Yes, I called him and asked him to come back.
MR. JACKSON: Because you told him that you had information that was important enough that he needed to get over there so you could tell him in person what this new information was?
MS. MCCABE: I called him and told him that I was remembering things and asked if he could come back.
MR. JACKSON: And he didn't just say, ah, just tell me what it was over the phone. He literally said, okay, I'm going to get in my car, drive in a blizzard, because it's still a blizzard, right?
MS. MCCABE: Yes, there was.
MR. JACKSON: I'm going to get all my gear on, drive in a blizzard back over to 34 Fairview, get out of my cruiser, come into the house, and get ready for this new information that you're going to give me, correct?
MS. MCCABE: He did not say all that, no.
MR. JACKSON: No. But that's what he did?
MS. MCCABE: I have no idea what he did. I called him and then he came.
MR. JACKSON: Well, he didn't walk over. I mean, he came over in his car, right?
MS. MCCABE: I would assume so, yes.
MR. JACKSON: Right. So he had to get in his car, drove over in a blizzard, get out of the car, walk through the blizzard, go to the front door, and get ready for this new meeting that he's going to have with you, correct?
MS. MCCABE: Yes, that seems like steps one would take.
MR. JACKSON: And whatever it was that you wanted to tell him, you let him know it was important enough to have a special additional meeting. It wasn't something that you were just going to sit on. You wanted to give him this information immediately, without hesitation, correct?
MS. MCCABE: He said if I remembered anything to give him a call, so I did.
MR. JACKSON: So when he came back over, he obviously had a notepad and a pen in his hand, correct?
MS. MCCABE: I believe he was taking notes.
MR. JACKSON: And you told him -- you testified this morning that what you told him was Karen Read said, "I hit him. I hit him. I hit him," right?
MS. MCCABE: Correct.
MR. JACKSON: But what he wrote in his report was that you said, "She said, 'I hope I didn't hit him,'" correct?
MS. MCCABE: I don't have his report in front of me.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes. A Thank you.
MR. JACKSON: You're welcome.
MR. JACKSON: If you could turn to the orange tab.
MS. MCCABE: (Witness complies.)
MR. JACKSON: Do you see that?
MS. MCCABE: I do, yes.
MR. JACKSON: And you've had a chance to read?
MS. MCCABE: Just the highlighted part.
MR. JACKSON: Okay. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: In fact, what you told Officer Lank was something to the effect of, "I hope I didn't hit him," correct?
MS. MCCABE: Incorrect. I told him that she said, "I hit him."
MR. JACKSON: He wrote in his report, which you just read, something to the effect of --
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: -- I hope I didn't hit him?
JUDGE CANNONE: Sustained.
MR. JACKSON: Is this another example of an officer getting a report wrong?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Is that report right?
MR. BRENNAN: Your Honor, objection.
JUDGE CANNONE: Sustained. Move on, Mr. Jackson.
MR. JACKSON: "I hope I didn't hit," or something to the effect of, "I hope I didn't hit him," sounds an awful lot like, "Could I have hit him? Did I hit him?" Would you agree with that?
MS. MCCABE: It does sound similar, yeah.
MR. JACKSON: You testified yesterday that during that first phone call, that first phone conversation with Ms. Read at 4:53 a.m., she told you, according to your testimony, that in that phone call, in that very first phone call, Ms. Read said she had gotten into a fight, her taillight was cracked, and she asked, "Could I have hit him?" or "Did I hit him?" Correct?
MS. MCCABE: Incorrect.
MR. JACKSON: Tell me where I'm wrong.
MS. MCCABE: The first phone call, she had said, "We got into a fight, and he didn't come home and I left him at the Waterfall." In the second phone call, once I told her that I saw her outside of my sister's house on Fairview, that is when she said, could she have hit him and talked about her taillight.
MR. JACKSON: So two hours after Ms. Read found John O'Keefe and began giving him CPR, you were interviewed by Sergeant Sean Goode, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Ask the questioning differently, Mr. Jackson.
MR. JACKSON: Two hours after Ms. Read found Mr. O'Keefe, about two hours later, say 8 o'clock, 8:30 in the morning, after the scene was cleared, you were interviewed by Sean Goode, were you not?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May we approach, Your Honor?
JUDGE CANNONE: Yes.
(Sidebar commences:
JUDGE CANNONE: So we should wait for your client.
(Ms. Read present.)
JUDGE CANNONE: All right. So go ahead. State your reason on the record.
MR. BRENNAN: Attorney Jackson's question includes a predicate that has an assumption to state of mind, and he is interjecting that his client found John O'Keefe. That is not the evidence, and it's not a fair conclusion to draw before asking the witness a separate question.
MR. JACKSON: She did find him. That's exactly what the evidence is. Even Kerry Roberts and Jen McCabe, who are very hostile to our side, said that she found him.
JUDGE CANNONE: Okay. I'm going to allow the -- I'm going to sustain the objection. Ask the question differently. Do you have a time frame? You don't need to make every question argumentative, either.
MR. JACKSON: That's not our -- I mean.
JUDGE CANNONE: Okay. Your objection's sustained.
MR. JACKSON: Judge, how do I use another word other than found?
JUDGE CANNONE: You don't need to. You can just say the time. You can ask her the time. You can ask her the time.
end of sidebar.)
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: While you were at the scene, after Ms. Read had been giving CPR, Sean Goode interviewed you, correct?
MS. MCCABE: I don't remember a formal interview with Sean Goode.
MR. JACKSON: Do you remember talking to him?
MS. MCCABE: When he arrived at the scene, I do remember briefly talking to him after all three of us gave John CPR.
MR. JACKSON: And he gave you -- he asked you, rather, he asked you certain questions about what you had seen, what you had heard, what had happened, correct?
MS. MCCABE: I have to tell you that I remember seeing him. I remember talking to him, but I do not remember specifics of any conversation or any questions that he asked me.
MR. JACKSON: Do you remember him telling you -- I'm sorry. Do you remember him asking you about any initial calls you had, and you telling him about that 4:53 call and the early morning calls thereafter, the initial calls before you met up with Ms. Read?
MS. MCCABE: I don't recall.
MR. JACKSON: Did you tell Sergeant Goode -- by the way, he was a sergeant at the time, Sean Goode was a sergeant not an officer?
MS. MCCABE: I'm not sure.
MR. JACKSON: By the way, you knew Sergeant Goode, did you not?
MS. MCCABE: I didn't know him. I knew of him. Like I knew his name, but that was it.
MR. JACKSON: How did you know of him before that day?
MS. MCCABE: Because his sister is a year or two younger than me, and I knew she had a brother that was younger that was a Canton cop just through town, but I didn't know him.
MR. JACKSON: Friendly but not friends?
MS. MCCABE: I would even say I was friendly with him.
MR. JACKSON: Okay. You actually told Sergeant Goode at the time when he asked about those phone calls that when Ms. Read called you, she was inquiring about John's whereabouts, correct?
MS. MCCABE: Again, I don't recall my conversations with Sean Goode.
MR. JACKSON: You certainly never mentioned to Sergeant Goode the incessant screaming and hysteria as you've described here in court?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you ever mention anything about an argument or a fight to Sean Goode?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained, Mr. Jackson. She said she didn't remember. Next question.
MR. JACKSON: I have to go through the series of machinations. I don't know what she remembers about or doesn't remember about.
JUDGE CANNONE: Next question, Mr. Jackson.
MR. JACKSON: Did you mention anything about a cracked taillight to Sergeant Goode?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You have no memory at all about you talked to Sergeant Goode about?
MS. MCCABE: There were many officers there.
MR. JACKSON: Right.
MS. MCCABE: And like I said, I know I talked to Sergeant Goode, but I do not remember the specifics of my conversation during that chaotic scene. I'm sorry.
MR. JACKSON: Okay. Let me ask you a different question. There many officers there and many officers were asking you questions, correct?
MS. MCCABE: Correct.
MR. JACKSON: Did you ask -- I'm sorry -- did you tell any officer while at the scene that during those first few phone calls, first couple of calls with Ms. Read that there was incessant screaming and hysteria?
MS. MCCABE: Again, there were many officers asking me questions. Most of them were regarding who John was, if he had medical issues or concerns, things like that.
MR. JACKSON: Right.
MS. MCCABE: It was a chaotic scene. I don't remember any specific questions about phone calls. I apologize.
MR. JACKSON: But you did tell at least one officer about the initial phone call that you received indicating that John may be missing, correct?
MS. MCCABE: I possibly said, I got a phone call and that's why I'm here. We all came out to look for him. I apologize for not remembering specifics.
MR. JACKSON: Did you tell any officer at the scene anything about an argument or fighting that Ms. Read said occurred on that first couple of phone calls?
MS. MCCABE: Again, the conversations were very brief, and they were with a lot of different officers --
MR. JACKSON: That's yes or no.
JUDGE CANNONE: Let her answer the question, please.
MR. JACKSON: Do you recall -- that is a yes or a no question, do you recall telling any officer about a conversation in the initial couple of phone calls that you had with Ms. Read about fighting or being in an argument. Do you recall that?
MS. MCCABE: I cannot answer yes or no.
MR. JACKSON: Well, you either do or you don't. If you don't --
MS. MCCABE: I said, I had many different conversations. I'm not sure.
MR. JACKSON: So you don't recall?
MS. MCCABE: I'm not sure on specific conversations about that. I apologize.
MR. JACKSON: Is there a reason why that you're not telling us that you simply don't recall making that statement?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you recall telling any officer about a cracked taillight that came up in one of those first two phone calls?
MS. MCCABE: At the scene?
MR. JACKSON: At the scene.
MS. MCCABE: Again, I think all the phone calls -- all the conversations were about what was happening in the present time.
MR. JACKSON: And literally, this was a couple of hours after this incident, correct, when everything was freshest in your mind?
MS. MCCABE: These conversations were at the scene when Ms. Read was running around and screaming.
MR. JACKSON: Were you also interviewed by an Officer Mullaney?
MS. MCCABE: Again, there were many officers there that I spoke to.
MR. JACKSON: Ms. McCabe, do you understand my question? Did you understand the last question I asked you?
MS. MCCABE: If I spoke to an Officer Mullaney?
MR. JACKSON: Correct.
MS. MCCABE: Again, I could have. I'm not sure. I don't remember every officer. It was a chaotic scene. I just found my friend on the ground.
MR. JACKSON: So the answer is, "I don't remember," correct?
MS. MCCABE: I don't remember --
MR. JACKSON: Okay. Thank you.
MS. MCCABE: -- speaking to him. I'm sorry.
MR. JACKSON: Later that morning, you did have a conversation with Officer Lank that you actually do remember, correct?
MS. MCCABE: Yes, correct.
MR. JACKSON: What you told Officer Lank or Sergeant Lank was that you received a phone call from (c) 's phone and that Karen Read was distraught because John never came home, correct?
MS. MCCABE: I told them she was -- I don't remember the exact words, but I told him something like she was hysterical and screaming because John never came home.
MR. JACKSON: You never mentioned that she said anything about a fight during that initial phone call, correct?
MS. MCCABE: Again, I'm not sure exactly what was said during that initial phone call.
MR. JACKSON: You never mentioned that she said something about a cracked taillight in that initial phone call or those two phone calls, correct?
MS. MCCABE: These phone calls -- who are these phone calls -- who am I speaking to?
MR. JACKSON: The initial phone calls that you had with Ms. Read.
MS. MCCABE: Yes.
MR. JACKSON: You never mentioned to Officer Lank or Sergeant Lank that Ms. Read mentioned anything about a fight or an argument, correct?
MS. MCCABE: I don't remember.
MR. JACKSON: You never mentioned anything about Ms. Read having saying anything about a cracked taillight in one of those two initial phone calls, correct?
MS. MCCABE: Again, I don't remember what I -- all the things that I told Officer Lank.
MR. JACKSON: And you certainly never mentioned that Ms. Read said anything about could I have hit him during any of those initial phone calls, correct?
MS. MCCABE: Again, I don't remember my specific conversation with Officer Lank.
MR. JACKSON: So you don't remember the conversation that you had with Officer Lank when it was clear light of day. You had a chance to take a beat and a breath, catch your breath because it's now 11:30, 11 o'clock in the morning. You don't remember anything about that conversation, but according to your testimony, you remember in detail what my client said waking you out of a dead sleep, correct?
MS. MCCABE: So I didn't speak to him at 11:30. It was earlier in the morning when he came back to Fairview.
MR. JACKSON: Let's call it 9 o'clock, whatever.
MS. MCCABE: Okay.
MR. JACKSON: Whatever. It wasn't the same chaos as my client screaming into the phone that John never came home, waking you out of a dead sleep, correct?
MS. MCCABE: Correct.
MR. JACKSON: But when you recounted that conversation or those conversations to Sergeant Lank, you didn't say a thing about Ms. Read saying that there had been an argument, did you?
MS. MCCABE: I'm saying I don't remember the specifics of my conversation with Officer Lank. I'm also saying that I was woken up out of a dead sleep. Karen showed up at my house screaming. I went out to help her look for John, and then we found one of my closest friends on the front lawn, and she was saying crazy things and acting crazy and acting --
MR. JACKSON: Ms. McCabe, that's not my question.
MS. MCCABE: -- erratic. And so every police officer --
MR. JACKSON: Ms. McCabe --
JUDGE CANNONE: Let her finish.
MR. JACKSON: That's not my question.
JUDGE CANNONE: Let her finish.
MS. MCCABE: -- I spoke to, every police officer that I spoke to, I tried to answer their questions the best I could. It took me hours and in some cases days to remember all the things that Ms. Read had said. My mind, I was in a state of shock, but the minute I remembered she said, "I hit him. I hit him. I hit him," I called Officer Lank.
MR. JACKSON: And your memory is getting better even as we sit here today, correct?
MS. MCCABE: There are certain things that I will never forget, Mr. Jackson.
MR. JACKSON: Including the fact that you never, ever, ever said she said the words, "I hit him," to a grand jury when you were asked about it three months after the incident, correct?
MS. MCCABE: She said, "I hit him. I hit him. I hit him."
MR. JACKSON: You never told that to the grand jurors, did you?
MS. MCCABE: I don't -- I can't remember specifically that -- every grand jury and everything I say, but I can tell you with 100 percent accuracy she screamed, "I hit him. I hit him. I hit him."
MR. JACKSON: And you never said that to the grand jurors --
MS. MCCABE: I don't recall I did.
MR. JACKSON: -- who were there to get the truth, correct?
MS. MCCABE: The truth is she said, "I hit him. I hit him. I hit him."
MR. JACKSON: And in fact, Ms. McCabe --
MR. BRENNAN: Objection.
MR. JACKSON: -- you were asked that specific question at the grand jury. What did she say at the scene in front of the female EMT, and you know what your answer was? You do because you just read it.
MS. MCCABE: I wasn't asked what she was said --
MR. JACKSON: What was the answer to that question?
MR. BRENNAN: I'm objecting.
JUDGE CANNONE: The objection is sustained. Ask her one more clear question, Mr. Jackson.
MR. JACKSON: What was the answer you gave in answer to the question about what was said by Ms. Read to the EMT, the female EMT at the scene, what did you say she said?
MS. MCCABE: I don't know if I was asked specifically what she said to a female EMT.
JUDGE CANNONE: All right. We're going to end this now.
MR. JACKSON: Your Honor, may I have one more question?
JUDGE CANNONE: Go ahead.
MR. JACKSON: I can't end it like this.
MR. JACKSON: You say she said --
JUDGE CANNONE: Okay. Jurors, ignore the comments of counsel. Ask one question, Mr. Jackson.
MR. JACKSON: You said that she said, "Could I have hit him? Did I hit him," in the presence of the female EMT. That's what you testified to under oath at the grand jury; isn't it?
MS. MCCABE: Yes --
MR. JACKSON: Thank you.
MS. MCCABE: -- and she also said that.
(End of testimony at 3:59 p.m.)