Commonwealth v. Read — Trial ArchiveJennifer McCabe — Cross (Part 2)
2,208 linesCOURT CLERK: Good morning, please. For the record, before the court is Commonwealth versus Karen Read, 22CR17. The parties are present. The jury is not present. The matter is on for trial. So, I was told that you wanted to see me, Miss Eddie?. Yes, please. Okay. Come on up to sidebar, folks. All right, let's bring the jurors in. And actually, I'll see you about scheduling while we're here. I forgot — — something. I do. Thank you, Chrissy. So, good. Did you see this? And then I'll take it back whenever. Tori. Oh. — the jury. Don't worry. Next call.
COURT CLERK: Hear ye, all persons having any business before the honorable Beverly Cannone, justice of the Norfolk Superior Court and for the county of Norfolk, draw near, give your attention, and you shall be heard. God save the Commonwealth of Massachusetts. The court is now open. You may be seated.
JUDGE CANNONE: For the record, before the court is Commonwealth versus Karen Read, 22 CR117. The parties are present. Our 18 jurors are present. The matter is on for trial.
JUDGE CANNONE: All right. Good morning again, counsel. Good morning again. Good morning, jurors. Good morning. I have to ask you those three questions. Was everyone able to follow my instructions and refrain from discussing this case with — — anyone since we left two days ago? Everyone said yes and nodded affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case? Everyone said yes and nodded affirmatively. Did anyone happen to see, hear, or read anything about this case since we last met on Wednesday? Everyone said no and nodded. So today is a full day.
JUDGE CANNONE: We will be recessing this afternoon around 3:40, 3:45. All right. Mr. Jackson, if you go to the podium as soon as Miss McCabe comes in. We have Miss McCabe. I like this. Whatever you want.
(Testimony of Ms. McCabe commences at 9:15 a.m.)
JUDGE CANNONE: Good morning, Ms. McCabe.
JENNIFER MCCABE, sworn
JUDGE CANNONE: Good morning.
MS. MCCABE: Good morning.
JUDGE CANNONE: All right, Mr. Jackson, whenever you're ready.
MR. JACKSON: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. JACKSON, continued:
MR. JACKSON: (By Mr. Jackson) Good morning, Ms. McCabe.
MS. MCCABE: Good morning.
MR. JACKSON: I'd like to draw your attention back to the time that you were watching the SUV out of the front door -- through the front door at 34 Fairview. Do you that time in mind?
MS. MCCABE: I never watched it but I looked at it.
MR. JACKSON: You saw it?
MS. MCCABE: Correct.
MR. JACKSON: All right. I just want to clear up one of the time frames that you indicated you last saw that SUV. You saw that SUV for the final time at 12:45 a.m., correct, it was up past the flagpole at that point?
MS. MCCABE: I can't be sure of a specific time. You indictated at a prior hearing in June 2023 that you, in fact, did see it for the last time at 12:45, and you know that because of a text message that you sent at 12:45; is that right? A I did send a text message at 12:45; that is correct.
MR. JACKSON: Did you say quote -- and by the way, for Court and counsel, this is at 782, lines 24 through 25, over to 783, lines 1 through 13 or so. Actually one through three.
MR. BRENNAN: Which page number, Counsel?
MR. JACKSON: It's 782 going to 783.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Mr. Brennan.
MR. BRENNAN: Thank you very much.
MR. JACKSON: No problem.
MR. JACKSON: Actually, Ms. McCabe and for Court and counsel I'm going to back up just a little bit to line 20. You stated quote, so I think my husband and I were talking just like about what they were doing, and then I sat back down and then at one point I think I said hello, and then I said at 12:42, "Where are you?" And then flip, I don't know if that's my last text, or if I did one more. Yeah, 12:45, hello. Because they were still there. And then question, "So the dark SUV was still outside the house at 12:45?" Answer, "At 12:45." Do you remember that question and answer colloquy back in June of 2023?
MS. MCCABE: I've been asked a number of questions, specifically that, those words, no. I do remember testifying. I believe I said I think in there. I think that. And to be honest, I'm not sure of exactly the times. I didn't pay close attention to when I was texting. Even though I was sitting, I was going back and forth to the door.
MR. JACKSON: But in June of 2023, at a hearing under oath, you did say that it was at 12:45 that you last saw the vehicle?
MS. MCCABE: I believe I said I think.
MR. JACKSON: Would it refresh your recollection to take a look at the transcript I just read from?
MS. MCCABE: I believe the word I think is in there.
MR. JACKSON: You believe, but you're not sure.
MS. MCCABE: Okay. I'll look at it.
MR. JACKSON: Would it refresh your recollection?
MS. MCCABE: Sure.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. A Thank you.
MR. JACKSON: You're welcome.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: Does that refresh your recollection, Ms. McCabe, what you said in June of 2023 about seeing the SUV at the location at 12:45?
MS. MCCABE: I see what I read -- sorry. I saw what I just read. I don't remember my exact words of every testimony, but I did just read that, yes.
MR. JACKSON: And in fact what you said back in June of 2023, quote, I don't know if it's my last text or if I did one more. Yeah, 12:45, hello. Because they were still there, period, correct?
MS. MCCABE: That's a part of what I said.
MR. JACKSON: And then the question was, "So the dark SUV was still outside the house at 12:45?" Answer, "At 12:45."
MS. MCCABE: I know I said I think. My husband denies. So there's more to that conversation.
MR. JACKSON: Ms. McCabe, what I read you is what the transcript indicates you said on June 8th of 2023, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Can you answer that? Is that correct?
MS. MCCABE: That I saw it at that time?
JUDGE CANNONE: Ask the question again, Mr. Jackson.
MR. JACKSON: Sure. That what you testified to in June of 2023 was you saw the SUV for the last time at 12:45. That's what you said, at least back then.
MS. MCCABE: That's part of what I said.
MR. JACKSON: I don't know if that's my last text or if I did one more. Yeah, 12:45, hello. Because they were still there. Question, "So the dark SUV was still outside at 12 -- outside the house at 12:45?" Answer, "At 12:45." That's what you actually testified to in June of 2023.
MS. MCCABE: That's what that says, correct.
MR. JACKSON: Thank you. You've been asked about with whom you communicated first thing in the morning when you received that 4:53 a.m. call, there -- at that call and thereafter, shortly thereafter, in the next few minutes, correct?
MS. MCCABE: Yes.
MR. JACKSON: As a matter of fact, you were asked by Trooper Prince in a formal interview on February 1, 2022, I know that was a while ago, in that initial formal interview three days after the event, Trooper Prince, the female trooper, asked you who you called or who you communicated with during that important few minutes after you received the first phone call from (c) 's phone, correct?
MS. MCCABE: I'm not sure of our exact conversation, but she did ask me a number of questions.
MR. JACKSON: Do you remember telling her, "I spoke with Karen Read," obviously?
MS. MCCABE: Again, I answered whatever questions she asked me. So if she asked -- I did speak with Karen Read that morning, correct.
MR. JACKSON: Okay. Ms. McCabe, my question is did you tell Trooper Prince three days after the fact I spoke to Karen Read, yes or no?
MS. MCCABE: If you have her report. I don't remember the specifics. I met with many, many police officers.
MR. JACKSON: Sure. Would it refresh your recollection to take a look at her report?
MS. MCCABE: I'd like to look at it, yes.
MR. JACKSON: Sure.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MS. MCCABE: Thank you.
MR. JACKSON: Ms. McCabe, you can familiarize yourself with that report, and there's a tab if that helps you because it's somewhat lengthy. See if that refreshes your recollection.
MS. MCCABE: Thank you. (Witness complies.) Okay.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. Ms. McCabe, did that refresh your recollection as to what you told Trooper Prince?
MS. MCCABE: I know what happened, so I just answered the questions.
MR. JACKSON: Yes or no. Yes or no, does that refresh your recollection as to what you told Trooper Prince?
MS. MCCABE: Yes.
MR. JACKSON: You told Trooper Prince that you had a conversation on (c) 's phone with Ms. Read, correct?
MS. MCCABE: Yes.
MR. JACKSON: That you also called Julie Albert after you got off the phone with Ms. Read the first time?
MS. MCCABE: Yes.
MR. JACKSON: And then thereafter, at some point you talked to Tom Beatty, correct?
MS. MCCABE: I never spoke with Tom Beatty.
MR. JACKSON: I'm sorry. My mistake. I misspoke. You called Tom Beatty. A Yes, I called him.
MR. JACKSON: You did not get through to Tom Beatty?
MS. MCCABE: No one answered, yes.
MR. JACKSON: Then you spoke at the grand jury about the same issue. Who did you talk to and who did you call in those minutes after the initial call on (c) 's phone, correct?
MR. BRENNAN: I'm going to object. I'd like to be heard.
JUDGE CANNONE: All right. Come on up. Could you bring that up, Mr. Jackson, please?
(Sidebar commences:
JUDGE CANNONE: I believe this is improper impeachment. What counsel is doing is taking the report written by somebody else that is a summary of a conversation, and then they're using that to try to create a pretense that this was the entire conversation between Ms. McCabe and the officer who wrote the report. It wasn't recorded. It's not Ms. McCabe's recorded statements. And then what he's going to do is he's going to try to compare it to sworn testimony of Ms. McCabe and suggest because she said something but didn't say something in the grand jury, it is different than Ms. Read's report which summarizes the conversation with somebody entirely different. That's improper impeachment, and it implies that the witness lied because a report written by somebody else may or may not be consistent or has omissions from grand jury minutes. That is unfair.
JUDGE CANNONE: What do you say?
MR. JACKSON: This is the most standard cross- examination that's ever been done. Of course, I'm going to ask her about conversations --
JUDGE CANNONE: All right. So let's back it down a little bit.
MR. JACKSON: It's standard cross. I mean, I have no idea what Mr. --
JUDGE CANNONE: So question was regarding grand jury testimony. So what are you doing with the grand jury testimony? It's inconsistent with what?
MR. JACKSON: With what she later said in other -- it's inconsistent with the facts that we will prove.
JUDGE CANNONE: I'm going to let him do it, and you get to back up and do it, but still object if it's -- if there's another basis for it.
MR. BRENNAN: Okay.
JUDGE CANNONE: And she adopted.
MR. BRENNAN: It's somebody else's words. It would be different if it was trial testimony compared to grand jury testimony. It would be different if it was federal grand jury compared to trial. This is not her testimony. It's creating the impression. It's creating the impresion with the jury that this is her testimony when it's not. It's not quoted. It's whatever the state of the mind of the officer is. And so it really creates a very unfair pretense by doing it this way.
MR. JACKSON: My only resistance to that is that's not true. I've used the report to refresh her recollection. She just adopted her own statement to Trooper Prince.
JUDGE CANNONE: So I agree. She said that it did refresh her recollection and this is what she said, but it's fair for you to get back up, just like it's fair cross- examination. You've objected before when it's been clearer when she's been asked, you know, or Proctor put in his report and all of that. But this is -- she adopted and she's said something like, I saw what it said, yes. Did it refresh her recollection? Yes. So she adopted it, and it's fair game for redirect. All right. You're all set, Mr. Jackson.
end of sidebar.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: Ms. McCabe, you were also asked the same series of questions about or a series of questions about the same events concerning that 4:53 phone call and the phone calls that you made shortly thereafter, correct?
MS. MCCABE: Yes.
MR. JACKSON: And in that testimony, you also, consistent with what you said to Trooper Prince, said, "I spoke with Karen Read on (c) 's phone. I then spoke with Julie Albert or I called Julie Albert then I called Tommy," correct?
MR. BRENNAN: I object.
JUDGE CANNONE: That objection is sustained.
MR. JACKSON: Did you -- what did you tell the grand jurors about who you called or who you attempted to communicate with in those first few minutes after that 3:00 a.m. call?
MS. MCCABE: I don't know exactly what I said on that day, but I know who I spoke to.
MR. JACKSON: You said on that day you spoke to Karen Read, correct?
JUDGE CANNONE: On which day? What are we talking about?
MR. JACKSON: The date of the grand jury.
JUDGE CANNONE: Okay.
MR. JACKSON: That would be April 26, 2022.
MS. MCCABE: I don't have the paper in front of me, so I don't know my exact words.
MR. JACKSON: Well, I'm not asking for your exact words, but did you tell them as you sit here, do you remember telling the grand jury, it was under questioning by the Commonwealth, that you spoke to Karen Read?
MS. MCCABE: I spoke with Karen Read that morning. Again, I don't -- I've been to many grand juries on different dates, so to remember specifically, I don't remember specific questions and specific answers, but, yes, Karen Read did call me that morning on (c) 's phone.
MR. JACKSON: My question is, what did you say to the grand jurors, and you're you don't remember?
MS. MCCABE: What question are you asking me?
MR. JACKSON: Who -- whom did you attempt to communicate with in those first few minutes after your first received a phone call from (c) 's phone?
MS. MCCABE: If you're asking me now, I can answer you.
MR. JACKSON: I'm asking you --
MS. MCCABE: In that -- I'm sorry. I don't remember the specifics. If you to show me and then I can review it. I know the answer to the question, I'm just not sure of my exact words on that day.
MR. JACKSON: I didn't ask you what your exact words were. I'm asking you about memory. You're testifying based on your memory, Ms. McCabe, are you not?
MR. BRENNAN: I object.
JUDGE CANNONE: All right. Go ahead and answer that question. Are you answering these questions based on your memory, Ms. McCabe?
MS. MCCABE: So I'm answering my questions based my memory of what happened on the 28th and 29th. I've testified multiple times. I've been interviewed by multiple police officers. To pinpoint one conversation is a bit of a challenge for me. But what I can tell you is what I remember from that day, which is, I'm sure, very similar to however I answered because it's the same.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Would it refresh your recollection to look at a transcript?
JUDGE CANNONE: Tell Mr. Brennan what page you're at, please.
MR. JACKSON: Sure. One eighty-eight to one eighty- nine.
MR. BRENNAN: Thank you.
MS. MCCABE: Thank you.
MR. JACKSON: I didn't get an answer to that question, Ms. McCabe. Would it refresh -- I just have to do this for the record. Would it refresh your recollection to look at a transcript?
MS. MCCABE: I'll look at it, yes (reading). Okay.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. A Thank you.
MR. JACKSON: Did that refresh your recollection about what you told the grand jurors in terms of who you communicated with or attempted to communicate with that morning?
MS. MCCABE: Yes.
MR. JACKSON: What did you tell the grand jurors?
MS. MCCABE: I told them that I communicated with Ms. Read, and that I called Julie Albert.
MR. JACKSON: And Tom Beatty?
MS. MCCABE: Oh, and Tom Beatty, sorry.
MR. JACKSON: So in both of those statements to Trooper Prince when you asked about your communications, and at the grand jury -- by the way, at the grand jury when you were asked who you communicated that morning -- or who you communicated with that morning, you didn't need to see a report, did you? You didn't ask to see a report like you're doing here?
MS. MCCABE: Well, I'm asking because you're asking specific questions about what I said on a specific day, and depending on who's asking the question, they ask questions in a different manner.
MR. JACKSON: So the Commonwealth --
MS. MCCABE: So the answer is always going to be the same. If you ask me who I spoke to, I'm always going to tell you I spoke to Ms. Read and Julie. I called Julie Albert and I called Tom Beatty. The answers always the same, but the way the question asked may be some of the words that I use maybe different. I don't remember on specific days. I have been questioned many times, but the answers are always going to be the same. The wording may be different.
MR. JACKSON: You done. Finished with that answer?
MS. MCCABE: Yes, I am.
MR. BRENNAN: Objection.
JUDGE CANNONE: I'm going to allow that, but let's move on.
MR. JACKSON: With --
MR. JACKSON: I'm trying, Your Honor.
MR. JACKSON: When the Commonwealth asks questions about who you contacted that morning at the grand jury, you didn't even have your recollection refreshed with anything. You said, "I talked to Karen Read. I called Julie Albert. I called Tom Beatty," correct?
MS. MCCABE: Correct.
MR. JACKSON: And that's exactly what you told Trooper Prince as well: Karen Read, Julie Albert, and Tom Beatty; is that right?
MS. MCCABE: Yes, correct.
MR. JACKSON: But you did make another phone call that morning that you left out of those statements, didn't you?
MS. MCCABE: I'm not sure.
MR. JACKSON: At 5:07 a.m., you called over to 34 Fairview, didn't you?
MS. MCCABE: If it's in my phone record, then I must've.
MR. JACKSON: It's in your phone records that you're aware of -- well, let me ask it a different way. You're aware that your phone records actually show that at 5:07 you called to 34 Fairview Nicole Albert's phone, correct?
MS. MCCABE: Correct.
MR. JACKSON: It shows also that that call lasted 38 seconds, correct?
MS. MCCABE: I'm not sure what it shows.
MR. JACKSON: You actually spoke to your sister Nicole that morning?
MS. MCCABE: I did not speak to my sister, no.
MR. JACKSON: So that 38 second call went to voicemail?
MS. MCCABE: I'm not sure. All I can tell you is I never spoke to my sister Nicole that morning prior to waking her up.
MR. JACKSON: But you do acknowledge that you made a phone call at 5:07 to Julie Albert -- I'm sorry -- to Nicole Albert your sister over at 34 Fairview in those early morning hours, correct?
MS. MCCABE: Yes, I learned after. When I was first being questioned, it's days after. It was a chaotic morning. I remember the Waterfall, Julie, then Tom Beatty. Calling to my sister wasn't as important -- burned in my mind at that point, no.
MR. JACKSON: And then you testified at the grand jury not hours or days later, you testified at the grand jury months later, correct?
MS. MCCABE: Correct.
MR. JACKSON: And at that grand jury, you also left out the fact that you contacted your sister, correct?
MS. MCCABE: There was nothing -- there's nothing nepharious. I remembered who I called. I didn't go back and look at phone records.
MR. JACKSON: I didn't say nefarious. Why would you use the word nefarious?
MS. MCCABE: Because it's nothing about me calling my sister that is nefarious, and I feel like you're insinuating it might be, that's why.
MR. JACKSON: Did you use that word because it sounds nefarious?
MS. MCCABE: No, I just used the word because I think that's how you're trying to portray something, but it's nothing.
MR. JACKSON: Or did you use that word because you think that's how it's coming across as nefarious --
MS. MCCABE: No.
MR. JACKSON: -- that you leave out contacting 34 Fairview that morning?
MS. MCCABE: No, not at all.
MR. JACKSON: Later that morning on January 29 -- by the way, you do see -- you do acknowledge that your phone records show that you called at 5:07 a.m. to your sister's cell phone, correct?
MS. MCCABE: I don't have them in front of me, but I believe that is correct, yes.
MR. JACKSON: Okay. Were you calling your sister's phone to alert her of something, is that why you called?
MS. MCCABE: No.
MR. JACKSON: Later that morning on January 29, after those initial phone calls, and after the scene had been cleared at about 11:30 in the morning, you did have a formal interview with Massachusetts state trooper Michael Proctor, did you not?
MS. MCCABE: I did, yes.
MR. JACKSON: The day before yesterday, you testified that Karen Read -- actually I think it may have been Tuesday you testified on direct examination Karen Read just showed up at your house screaming, correct?
MS. MCCABE: Correct.
MR. JACKSON: And point of fact, you told Michael Proctor in that at 11:30 a.m. or thereabouts that interview that morning, that on January 29, when Karen was on the phone with you, you told her to come to your house; isn't that true?
MS. MCCABE: No, I never told her to come to my house.
MR. JACKSON: She told you she wanted to go search for John instead of saying, I'll come meet you, or I'll go wherever you want to go, you told her, no, no, no, come to my house, and pick me up, and we'll go together, correct?
MS. MCCABE: No, that's incorrect.
MR. JACKSON: Did you remember talking to Trooper Proctor on that day?
MS. MCCABE: I do, yes.
MR. JACKSON: Do you remember exactly what you told him concerning the plan to either come to your house to go search for John?
MS. MCCABE: There was never a plan for Karen to come to my house.
MR. JACKSON: Do you remember exactly what you told him with that regard on that issue?
MS. MCCABE: No, I don't.
MR. JACKSON: Would it refresh your recollection to look at a police report that he drafted on that issue?
MS. MCCABE: Those are his words or summary.
MR. JACKSON: That's not my question. I know there are his words. He wrote it. My question is would it refresh your recollection about what you told him to take a look at his report?
MS. MCCABE: I know what happened, and I know what I told him. I don't know what's written in that report.
MR. JACKSON: Yes or no?
MS. MCCABE: I don't need to see a report, no.
MR. JACKSON: Because it would not refresh your recollection to see a report where he indicated that you told him that you directed Ms. Read to come to your house?
MR. BRENNAN: I object.
JUDGE CANNONE: The objection is sustained. I'm going to strike that, folks.
MR. JACKSON: You also told --
MR. BRENNAN: I'd like to be seen on this.
JUDGE CANNONE: Okay. Will you come to sidebar, please. Jurors, feel free to stand up and stretch if you want to.
(Sidebar commences:
MR. BRENNAN: I'm not seeing it in the report --
MS. LITTLE: It says, "Jennifer told Karen to come to her house on (f)(f) , and they will go look for John together."
MR. BRENNAN: What page you on?
MS. LITTLE: Page 2.
MR. BRENNAN: Oh, okay (reading). This is a different report. Well, if it's there, it's there. My apologies.
MR. JACKSON: That's no problem.
MR. BRENNAN: I'm sorry to interrupt.
JUDGE CANNONE: So it's not in evidence, and you didn't refresh your recollection, so.
MR. JACKSON: I'm well aware of the evidence code, Judge. I'm doing the best I can. I may adjust my cross- examination back up to two hours, though.
JUDGE CANNONE: Okay.
MR. JACKSON: Based on how the cross is going.
MR. BRENNAN: My regret.
end of sidebar.)
MR. JACKSON: May I?
JUDGE CANNONE: Sure.
MR. JACKSON: Ms. McCabe, during that same interview you also told Trooper Proctor that while driving back to One Meadows, after you had been picked up by Karen at your house, while driving back to One Meadows, that's actually when Ms. Read told you she may have broken her taillight, correct?
MS. MCCABE: Ms. Read told me in the morning at my house.
MR. JACKSON: I know that's what you're testifying to now, what I'm asking is what did you tell Michael Proctor on January 29, what's freshest in your mind?
MS. MCCABE: That she had told me she had a cracked taillight when she called me.
MR. JACKSON: You didn't tell him that she indicated she noticed her taillight had been damaged on the drive back to One Meadows after she got to your house?
MS. MCCABE: She mentioned that as well, but she also had told me when she was on the phone. That's why my husband yelled out that we shouldn't be driving with a cracked taillight.
MR. JACKSON: But in fact, you did not tell Trooper Proctor that story. What you told him was she told you on the drive back to One Meadows after having picked you up, correct?
MS. MCCABE: I told him she told me in the morning and on the drive back.
MR. JACKSON: So if he didn't write that in his report, it's obviously incorrect?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Of course that's drive back to One Meadows would have been 5:30-ish or so, a little bit later, 5:35?
MS. MCCABE: Approximately, yeah. I'm not sure.
MR. JACKSON: Well after she backed out of the driveway and struck another vehicle at One Meadows, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Do you know that?
MS. MCCABE: No, I have no idea.
JUDGE CANNONE: All right. Next question.
MR. JACKSON: Speaking of Trooper Proctor, when you first interviewed with him on that -- during that same interview on January 29, did you notice if was taking notes, obviously?
MS. MCCABE: Yes, he was.
MR. JACKSON: You told him about your observations of the taillight that date; is that right?
MS. MCCABE: I'd have to see the report, but I believe I told him about it, yes.
MR. JACKSON: And that was literally the same day that you made the observation; is that right?
MS. MCCABE: Yes, it was.
MR. JACKSON: He asked you to describe, specifically, what the taillight looked like, and you did so, correct?
MS. MCCABE: Could I see the report?
MR. JACKSON: All I'm asking right now -- I've got the report. If you need it, I'll give it to you. I'm asking about your memory, Ms. McCabe. Did you tell him about what the taillight looked like?
MS. MCCABE: If he asked me what the taillight looked like, then I would have told what it looked like, yes.
MR. JACKSON: And what you told trooper Proctor on that day is that you, quote, saw a crack in it; is that right?
MS. MCCABE: I believe I said it was broken and cracked, and it was missing pieces.
MR. JACKSON: Isn't it true that what you actually said, "Is we got out John's house and looked at the taillight, back right taillight, saw a crack in it," correct?
MS. MCCABE: I said that I saw it, and it was cracked and it was missing pieces.
MR. JACKSON: You noted that he was taking notes, correct?
MS. MCCABE: Correct.
MR. JACKSON: Have you ever seen those notes?
MS. MCCABE: No.
MR. JACKSON: Would it refresh your recollection as to what you actually told him in terms of the description to take a look at these notes?
MR. BRENNAN: I object to the phrase.
JUDGE CANNONE: So ask it differently. That's sustained.
MR. JACKSON: Sure.
MR. JACKSON: Do you remember exactly the words you used in describing that taillight to Trooper Proctor as you sit her today?
MS. MCCABE: Again, the taillight was cracked and missing pieces.
MR. JACKSON: Okay. I know that's what you're testifying to today, Ms. McCabe. We're all of aware. You said it four or five times. What I'm asking you is what did you tell Trooper Proctor on January 29, that's my question. Do you remember the exact words you used to him on the 29th?
MS. MCCABE: I believe I said it was cracked and missing pieces.
MR. JACKSON: Do you know that or are you guessing?
MS. MCCABE: I'm not guessing.
MR. JACKSON: Okay. Do you remember that specifically?
MS. MCCABE: I remember describing it as cracked and missing pieces.
MR. JACKSON: Do you remember saying it had a crack or she saw a crack in it?
MS. MCCABE: I do not remember saying that, no.
MR. JACKSON: Would it refresh your recollection to look at a copy of his notes?
MS. MCCABE: Those are his notes.
MR. JACKSON: Ms. McCabe, we can do this all day. Would it refresh your recollection to look at a copy of his notes? If it wouldn't, just tell us.
MS. MCCABE: No, it wouldn't.
MR. JACKSON: Okay. As you sit here today, are you telling this jury that you denied saying to Trooper Proctor you saw a crack in it. Are you denying that statement?
MS. MCCABE: I'm not denying it.
MR. JACKSON: So you could have told him that?
MS. MCCABE: He asked me multiple times different questions. I spoke to him at my house, and then he had called me. So maybe one time I said it had a cracked in it -- a crack in it, and another time I said it was broken and missing pieces.
MR. JACKSON: So it's very possible that that's how you described it on the 29th, Ms. McCabe, it had a crack in it, right?
MS. MCCABE: And missing pieces.
MR. JACKSON: I'm not asking you to finish my sentence. I'm asking you is it possible that that's what you would told him that day, it had a crack in it; yes or no?
MS. MCCABE: Yes, that was --
MR. JACKSON: Thank you.
MS. MCCABE: Mm-hmm.
MR. JACKSON: In the days following January 29, and the events of January 29, 2022, were you and your family coordinating your versions of the events that occurred on that morning?
MS. MCCABE: No.
MR. JACKSON: Were you and your family coordinating some sort of damage control in terms of the language that the family would use to the public, to the press, to law enforcement?
MS. MCCABE: No.
MR. JACKSON: Did you and your family use a group chat, you or part of your family, use a group chat to text with each other and to coordinate the communications with you with either the press, the public, or law enforcement, family or friends?
MS. MCCABE: I have a group -- I have multiple, like, group chats with family and friends.
MR. JACKSON: You had a very specific group chat that included yourself, Nicole your sister, Brian Albert, and Matt McCabe?
MS. MCCABE: Yes, I did.
MR. JACKSON: Your Honor, if I may?
JUDGE CANNONE: Okay.
MR. JACKSON: I have a two-page document that I'd like to have marked for identification.
JUDGE CANNONE: All right.
MR. JACKSON: Ask to approach?
JUDGE CANNONE: Sure. A Thank you.
JUDGE CANNONE: Did you show Mr. Brennan?
MR. JACKSON: Mr. Brennan, I failed to show you.
MR. BRENNAN: That's okay.
(Counsel confer.)
MR. JACKSON: Can you tell me if you recognize what's depicted or what's contained on that two-page document?
MS. MCCABE: Yes.
MR. JACKSON: What are -- don't read it at this point, just tell me what is that, what are we looking at?
MS. MCCABE: This is a -- it looks like a group chat with me and my sister Nicole. Or, no, just actually conversations with myself and my sister Nicole.
MR. JACKSON: May I approach?
(Whereupon Exhibit K, Texts Between Jen and Nicole, was entered as an exhibit.)
MR. JACKSON: Did you happen to catch the date on these threads?
MS. MCCABE: I didn't.
MR. JACKSON: I took the document away. I apologize.
MS. MCCABE: That's okay. I didn't, no.
MR. JACKSON: May I approach?
JUDGE CANNONE: Sure. Do you have an extra copy so she has one and you have one, Mr. Jackson?
MR. JACKSON: I'll just leave that one. I don't have an extra copy for myself. I'll leave that one for her. A Thank you.
MR. JACKSON: Do you note the date on that series of chats?
MS. MCCABE: Yes, it says 1/29/22.
MR. JACKSON: Okay. Is that a chat between yourself and Ms. -- I'm sorry -- yourself and Nicole, or does that include others as well?
MS. MCCABE: I think it's just myself and Nicole.
MR. JACKSON: There was another series of chats, and we'll get to that in a second, that does include Nicole, Brian, Matt McCabe, correct?
MS. MCCABE: Yes.
MR. JACKSON: On this particular set of texts, do you see the first text, starting in the green box, that is a text from you to it says Coco, correct?
MS. MCCABE: Yes, that's my sister Nicole.
MR. JACKSON: Okay. And do you recognize this text?
MS. MCCABE: I do, yes.
MR. JACKSON: And do you recognize the texts following the bubbles?
MS. MCCABE: Yes.
MR. JACKSON: I'm going to ask that this be marked for -- I'm sorry -- moved into evidence.
JUDGE CANNONE: Is there any objection?
MR. BRENNAN: If I could review it briefly?
JUDGE CANNONE: Sure. Why don't I see you at sidebar briefly about this?
(Sidebar commences:
MR. BRENNAN: Okay. I don't have an objection to this, but I think all of her text messages should come in to put it in context rather than just admit these as out of her texts. So there is a copy of all her text messages for a number of days, and the defense is going to take little pieces out, I think the whole texts should come in.
JUDGE CANNONE: How many texts are we talking about?
MR. BRENNAN: We're talking about this many.
MS. MCLAUGHLIN: Three hundred and forty pages.
JUDGE CANNONE: What do you say about that, Mr. Jackson?
MR. JACKSON: It's completely unnecessary. If Mr. Brennan wishes to find other texts that he thinks somehow obviates these then that's fine. These are certain texts on that day about this subject matter, and that's why I don't care about other texts that include where are the basketball games and that they're having for dinner.
JUDGE CANNONE: I'm not going to put in all 300 in response to these texts coming in. You'll be able to add other texts. Unless these are coming in through another witness for another purpose.
MR. BRENNAN: Well then that's hearsay. She can be impeached on something. She hasn't denied these texts. It's not admissible evidence substantively, so I object to that coming in.
JUDGE CANNONE: All right. So what do they say?
MR. JACKSON: It's not offered for the truth of the matter asserted. It's offered for the state of mind of the declarants and the effect on the listener.
JUDGE CANNONE: But what are they?
MR. JACKSON: Basically, the first text talks about it's between Jennifer and Nicole talking Kerry, K-E-R-R-Y, Roberts having talked to the police, how she spoke to the police, that she kept it simple, they want to talk tomorrow, give me updates. I'll get more information tomorrow. This is on the 28th -- the 29th. The tomorrow was the 30th. It deals directly with the like visit. She says right, and then it finishes with Nicole saying, "Text me in the morning. Let me know if you hear anything."
MR. BRENNAN: So my two issues are, even though it's state of mind, which I agree it doesn't make it admissible hearsay. That's not admitted substantively. It's to show her state of mind. Secondly, if they're going to take text message between her and Kerry, these text messages show about their entire state of mind over the next couple days, among other people. So that selective offer of a couple of text messages between them doesn't tell the full story. So it's trying to portray it as sinister. When the people look at all the text messages, it's in totally normal relationship to the circumstances. So while I can parse these down, if they're going to take pieces of conversations to talk about Jen McCabe's state of mind, you should have the full state of mind for that period of two days.
MR. JACKSON: This specifically impeaches what Mr. Brennan brought out on direct examination that Jennifer McCabe was just sort of a backstreet passenger in this whole thing, that Kerry Roberts was the one controlling everything. She was dictating everything. She was in charge. And it goes to her state of mind as well as what she was thinking, about how she was going to control the narrative using Kerry Roberts for --
JUDGE CANNONE: Okay. May I just see it for a minute, please?
MR. JACKSON: And these were admitted at the last trial as well.
JUDGE CANNONE: Yeah.
MR. BRENNAN: That was not meant --
MR. JACKSON: The exact -- the exact texts.
MR. BRENNAN: That was not my material on direct. She said that Kerry controlled it in the car. I never made a suggestion. There's no inference that Jen McCabe was -- Kerry Roberts was controlling the entire day.
JUDGE CANNONE: All right. So what I'm going to do first, and the main reason I called you over here -- I'll give that back to you, Mr. Jackson -- is I have to give an instruction, and I didn't want to interrupt officer or Trooper Guarino when he was reading the texts. But I'm going to give an instruction that the jury first has to believe that they are what in fact they say they are.
MR. JACKSON: Sure.
JUDGE CANNONE: I can wait until the end, but I was going to do it soon anyway. So I'll do it now, and I'll say that these messages are being used not for the truth of what's in the report, but the state of mind of the declarant and the recipient. And then you can do what you want to do or try whatever you want to do on redirect with these. My guess is we'll also have a morning break before the redirect to see if you have additional text messages.
MR. BRENNAN: So in addition to the content, Your Honor is going to allow this in substantively?
JUDGE CANNONE: I'm going to allow it in for state of mind evidence.
MR. BRENNAN: The document is going to come in?
JUDGE CANNONE: Is the document coming in?
MR. JACKSON: Yes.
MR. BRENNAN: And that's my objection because it gives undue attention to a limited portion of her state of mind. And so I understand your ruling, I'm not going to argue against it, but my point is if they want to bring in a fraction of her state of mind and try to portray or draw an inference from it, we should have her full state of mind at that time.
JUDGE CANNONE: So you can put in -- what are the times on this? Date and time. It's the same date, right?
MR. JACKSON: January 29. Time is about 7:30 at night.
JUDGE CANNONE: All right. Are all of those 300, January 29, at that period of time?
MS. MCLAUGHLIN: In the evening of the 28th.
MR. BRENNAN: It's the 29th and then it goes back to the 28th, so I think for other -- oh, it goes to the 30th, so I guess we don't need it to them, but I can limit it to the 29th.
JUDGE CANNONE: So you can make that argument at the time.
MR. BRENNAN: Okay.
JUDGE CANNONE: So we'll do this sort of piecemeal. I think you are probably back to the two hour cross, which is --
MR. JACKSON: With this, probably.
JUDGE CANNONE: -- fine. So, all right, that's marked for identification. I will let you put it into evidence. Do not display it until I give those two instructions.
MR. JACKSON: Understood. And there's another, just so we don't have to approach again, I've got another set of texts.
JUDGE CANNONE: Well, that's what I was wondering if these are coming in now.
MR. BRENNAN: Can I take a look at this for a sec?
MR. JACKSON: Sure.
JUDGE CANNONE: Mr. Jackson, tell me the time frame on what you have in your hand?
MR. JACKSON: January 29th going from 7:54 p.m. until the last text is 8:01 p.m.
JUDGE CANNONE: Okay. And then one you just provided Mr. Brennan now?
MR. JACKSON: I'll have to look at those.
MR. BRENNAN: I have the text messages --
JUDGE CANNONE: No, I understand.
MR. BRENNAN: -- they're in this package here.
JUDGE CANNONE: It's the packet that you have.
end of sidebar.)
JUDGE CANNONE: Jurors, feel free to stand up and stretch.
(Sidebar commences:
JUDGE CANNONE: When -- how quickly -- when are you putting this in?
MR. JACKSON: Right after this.
MR. BRENNAN: So, again, I'm going to object because again -- for two reasons. One, we're putting state of mind evidence into a written form which makes it para- substantive evidence to the jury, and so it would be difficult for them to be discern. It gives undue attention to mere statements regarding her state of mind. The second objection will be the same that if we're going to introduce these, we should be able to show her entire state of mind around that critical point in time.
JUDGE CANNONE: All right. So what is the timeline?
MR. BRENNAN: Do you want me to read it?
MR. JACKSON: Sure.
MR. BRENNAN: It looks like the first text message is February 1, 2022, at 12:48. That goes to February 1, 2022, at 5:34. So, again, this would expand my request.
JUDGE CANNONE: Okay. Then -- and your request may be more reasonable given all this, so. You'll need a question in between because that's a big gap.
MR. JACKSON: Understood. Understood. I intend to lay the foundation.
end of sidebar.)
JUDGE CANNONE: All right. So the objection is noted and overruled. So, Mr. Jackson, you put that K for identification is now an exhibit.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
(Whereupon Exhibit No. 47, Texts Between Jen and Nicole (formerly K), was marked as an exhibit.)
MR. JACKSON: Thank you, Your Honor. Before I proceed --
JUDGE CANNONE: All right. No, and I'm -- jurors, before you consider any electronic communications in your deliberations, and you heard Trooper Guarino read a lot of text messages the other day. I didn't interrupt him, I probably should have, but before you consider any electronic communications in your deliberations, you must first find that it is more likely true than not that the person who either authored or created or transmitted the communication was in fact the person alleged. So here we have communications between -- allegedly between Ms. McCabe and her sister. Before you can consider them, you must find that it's more likely than not that they were the people who sent and received those. If you do not find it's more likely to than not, if the person alleged to have created or sent them, then you may not consider the electronic communication in deciding your case. Now, when you read or hear about these text messages, you may not consider the statements for their truth, but you may consider them solely for the limited purpose of just understanding the state of mind of, here, Ms. McCabe when she sent those messages. All right. So that that's what I needed to do. Mr. Jackson, your turn.
MR. JACKSON: Thank you, Your Honor. With the Court's permission I would ask that the January 29, text be published.
JUDGE CANNONE: Yes.
MR. JACKSON: Your Honor, may I approach just to retrieve the exhibit. A Thank you.
MR. JACKSON: You're welcome.
COURT OFFICER: Your Honor, some of the jurors --
JUDGE CANNONE: Yeah, I was just going to say, could you please enlarge that?
MR. JACKSON: Anyway to make that bigger? We'll take one bubble at a time.
JUDGE CANNONE: Ms. McCabe, do you need lights on or are you okay?
MS. MCCABE: Oh, I'm okay.
JUDGE CANNONE: All right.
MS. MCCABE: Thank you.
MR. JACKSON: Ms. McCabe, is this -- does this appear to be a representative copy of what you're looking at that's just been marked for evidence?
MS. MCCABE: Yes, it does.
MR. JACKSON: Starting at that top text which is the green bubble here, can you see at the very top where it says from there's a redaction?
MS. MCCABE: Yes.
MR. JACKSON: The last four digits of that phone number, do you recognize that?
MS. MCCABE: Yes.
MR. JACKSON: Is that your phone number?
MS. MCCABE: Yes.
MR. JACKSON: Do you see just been it, it says a two and there's a line that says Coco?
MS. MCCABE: Yes.
MR. JACKSON: Is that your sister?
MS. MCCABE: Yes.
MR. JACKSON: That's Nicole?
MS. MCCABE: Yes.
MR. JACKSON: And if you look down at the bottom right corner of this exhibit, do you see a time and date stamp?
MS. MCCABE: Yes, I do.
MR. JACKSON: What is that time and date?
MS. MCCABE: It's 1/29/22 at 7:54.
MR. JACKSON: Is that 7:54 p.m.?
MS. MCCABE: Yes.
MR. JACKSON: Can you read for the jurors what you texted to your sister at 7:54?
MS. MCCABE: Sure. "Kerry talked to the cops and kept it simple."
MR. JACKSON: Who's Kerry?
MS. MCCABE: Kerry Roberts.
MR. JACKSON: And this is a text that you sent about Ms. Roberts's interview with the police?
MS. MCCABE: Yes, it is.
MR. JACKSON: Mr. Wolk, can we pull up the next text, please?
MR. JACKSON: Do you see the response in the blue bubble?
MS. MCCABE: Yes, I do.
MR. JACKSON: Who's responding to whom?
MS. MCCABE: I'm responding to my sister Nicole.
MR. JACKSON: Can you please tell us the time -- we know it's the same date. What time is that?
MS. MCCABE: That would be 7:50 -- sorry 7:56 or 58. I'm sorry. I'm not sure if that's an eight or a six.
MR. JACKSON: I may have misheard you. The blue bubble is from whom?
MS. MCCABE: It's from my sister Nicole.
MR. JACKSON: To whom?
MS. MCCABE: To me.
MR. JACKSON: Okay. I may have misheard you. I thought you said the reverse. I want to make sure we're very clear. The blue bubble is from Nicole. The green bubbles are from you?
MS. MCCABE: Yes, correct.
MR. JACKSON: Got it. And this text says -- I'm sorry read that for me one more time?
MS. MCCABE: Sure. "Okay. Try to get some more sleep. Talk tomorrow."
MR. JACKSON: Next text, please. What's the time of this text?
MS. MCCABE: 7:57.
MR. JACKSON: This is from you to Coco, to Nicole?
MS. MCCABE: Yes.
MR. JACKSON: What does that text say?
MS. MCCABE: "Any update."
MR. JACKSON: What did you mean by any update?
MS. MCCABE: I mean had she heard anything or learned anything new.
MR. JACKSON: Next text, please. Do you see a response from your sister to you?
MS. MCCABE: Yes.
MR. JACKSON: What does that say?
MS. MCCABE: "Will get more info tomorrow. Don't want to text about it."
MR. JACKSON: Next text, please. Is this a text from you to your sister Nicole?
MS. MCCABE: Yes, it is.
MR. JACKSON: What does that say?
MS. MCCABE: "Right."
MR. JACKSON: Next text, please. What is the date and time of this text?
MS. MCCABE: It is 1/29 and 2022 at 8:01 p.m.
MR. JACKSON: And this is in response to the text that you just read from you to your sister?
MS. MCCABE: Yes.
MR. JACKSON: And this is now a text from your sister back to you, correct?
MS. MCCABE: Correct.
MR. JACKSON: What does this text say?
MS. MCCABE: "Okay. Text me in AM, or if you hear anything later."
MR. JACKSON: Thank you. You could you bring the lights up for just a moment. One of the texts, the third from the bottom text on the second page, in other words the top text on the page, was from your sister to you, "Will get more info T-O-M-M," correct?
MS. MCCABE: Yes.
MR. JACKSON: Don't want to text about it, correct?
MS. MCCABE: Yes.
MR. JACKSON: TOMM means tomorrow?
MS. MCCABE: Yes.
MR. JACKSON: This was January 29th of 2022, correct?
MS. MCCABE: Yes.
MR. JACKSON: Tomorrow would have been January 30?
MS. MCCABE: Yes.
MR. JACKSON: 2022; is that right?
MS. MCCABE: Yes.
MR. JACKSON: Your Honor, I'm holding another document. This is a multipage document. Eight pages in total length. There's a Bates page on the bottom 02148.
MR. BRENNAN: Thank you.
MR. JACKSON: May I approach the witness?
JUDGE CANNONE: Yes. A Thank you.
MR. JACKSON: Can you please take a look at that document, flip through it, and let me know when you're finished?
JUDGE CANNONE: And this is the document we discussed at sidebar?
MR. JACKSON: It is, Your Honor.
MS. MCCABE: (Reading.)
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I stand at the witness stand for just a second?
JUDGE CANNONE: Okay. You don't have a separate copy for Ms. McCabe?
MR. JACKSON: I do. I'm going to hand you this one and ask this be marked. Just a couple of foundational questions.
MR. JACKSON: Ms. McCabe, do you recognize what's depicted in these documents?
MS. MCCABE: Yes.
MR. JACKSON: Does this appear to be a group chat between and among yourself, Nicole Albert, Chris Albert, and Matt McCabe?
MS. MCCABE: I don't believe Chris Albert's on that.
MR. JACKSON: I'm sorry. My mistake. Brian Albert?
MS. MCCABE: Yeah, Brian was.
MR. JACKSON: So the four of you?
MS. MCCABE: Yes.
MR. JACKSON: And does this appear to be a group chat that was engaged between and among you all on February 1, starting -- I'm going to try to bookend it, starting at about noon ending at about 5:00 or 5:30 that evening?
MS. MCCABE: I didn't look, but I'll take your word for it.
MR. JACKSON: If you could just look at the first one or two?
MS. MCCABE: Okay. Yeah, February 1. Yes.
MR. JACKSON: Ignoring the top one. The top one has nothing to do this.
MS. MCCABE: Okay. Yeah.
MR. JACKSON: And then the last one, same date around 5:30, too?
MS. MCCABE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I'd ask that this be marked.
JUDGE CANNONE: All right. Same -- for identification or in evidence?
MR. JACKSON: Into evidence.
JUDGE CANNONE: Same objection, Mr. Brennan?
MR. BRENNAN: Please.
JUDGE CANNONE: Yes, that can come into evidence.
(Whereupon Exhibit No. 48, Group Texts Between Jen, Nicole, Brian Albert, and Matt McCabe, was marked as an exhibit.)
JUDGE CANNONE: And, jurors, the same instruction regarding the electronic communications, and the same instruction regarding this is not to be used for the truth of what's in there, but simply as it goes to Ms. McCabe's state of mind.
MR. JACKSON: With the Court's permission to publish, please?
JUDGE CANNONE: Yes.
MR. JACKSON: Please show the second text down. Mr. Wolk, can you make that a little bigger? I apologize. Thank you.
MR. JACKSON: Do you recognize what's depicted both on the screen and in your hand?
MS. MCCABE: Yes.
MR. JACKSON: Does it appear to be the same thing?
MS. MCCABE: Yes.
MR. JACKSON: Okay. Take a look at that first text. Who's that from and who is it to?
MS. MCCABE: It's from Brian Albert and it's to myself, my sister Nicole, and Matt McCabe my husband.
MR. JACKSON: And if you could orient us, please, and I won't do this with every single text, but orient us for the first text, what dates and times are this text?
MS. MCCABE: This is February 1, at 12:50.
MR. JACKSON: So this is about three days after the event in question?
MS. MCCABE: Yes.
MR. JACKSON: 12:50, noon?
MS. MCCABE: Noon.
MR. JACKSON: Just before 1:00 p.m.?
MS. MCCABE: Yes.
MR. JACKSON: What does that text say?
MS. MCCABE: "Julie said Channel 4 is in D&E."
MR. JACKSON: And that's from whom?
MS. MCCABE: Brian.
MR. JACKSON: So Brian Albert is -- explain what that text means?
MS. MCCABE: So Brian Albert is telling us that channel -- that Julie told him Channel 4 is in D&E.
MR. JACKSON: Who's Julie?
MS. MCCABE: I'm sorry. Julie Albert.
MR. JACKSON: Thank you. Let's go to next text. Is this in response to the text that you just read?
MS. MCCABE: Yes.
MR. JACKSON: The prior text mentioned Channel 4 in D&E. What is D&E?
MS. MCCABE: D&E is a sub shop that is owned by Chris Albert.
MR. JACKSON: Is that in Canton?
MS. MCCABE: Oh, I'm sorry. Yes, it's in Canton.
MR. JACKSON: On the main street of Canton?
MS. MCCABE: Yes.
MR. JACKSON: Directly next door to what?
MS. MCCABE: Waterfall.
MR. JACKSON: Across the street from Waterfall?
MS. MCCABE: I'm sorry. CF McCarthy's, yeah.
MR. JACKSON: Thank you. Across the street from Waterfall, directly adjoining -- adjoining wall to CF McCarthy's, correct?
MS. MCCABE: Yes.
MR. JACKSON: And D -- is it D and E or D-N-E.
MS. MCCABE: D and E.
MR. JACKSON: D and E, okay. That's just the name of the pizza or sub shop?
MS. MCCABE: Yeah.
MR. JACKSON: Thank you for that context, Ms. McCabe. Can you read what this text says, who it's from and who it's to?
MS. MCCABE: This is from Matt McCabe to myself, my sister Nicole, and Brian.
MR. JACKSON: Can you read it for us, please?
MS. MCCABE: Sure. "Eating I assume. Ask Chris to ask some questions. Tell him the guy never went into the house."
MR. JACKSON: "What does tell him the guy never went into the house," mean to you? How did you take that?
MS. MCCABE: I took that as John never came in the house.
MR. JACKSON: Who's the guy?
MS. MCCABE: John.
MR. JACKSON: John O'Keefe?
MS. MCCABE: Yes.
MR. JACKSON: And the beginning of that sentence is, "Tell them that the guy never came in the house," correct?
MS. MCCABE: Yes.
MR. JACKSON: And the sentence before that is, "Ask Chris to ask some questions," correct?
MS. MCCABE: Yes.
MR. JACKSON: So this is Matt McCabe directing that Chris ask questions of Channel 4, correct?
MS. MCCABE: I wouldn't say directing.
MR. JACKSON: Whatever word you want to use, he was --
MS. MCCABE: No, I'm saying that --
MR. JACKSON: Suggesting?
MS. MCCABE: I think we're all looking to find out what happened, so Matt was like, ask some questions, what do they know.
MR. JACKSON: And also indicating that Chris should tell them the guy never came in the house, correct?
MS. MCCABE: John never came in the house, correct.
MR. JACKSON: Okay. Next text, please. Who is this text from and who is to?
MS. MCCABE: Okay. This text is from Brian to myself, to Nicole, and to Matt.
MR. JACKSON: Brian who?
MS. MCCABE: Sorry. Brian Albert.
MR. JACKSON: And this is in response to the text above that you just read, correct?
MS. MCCABE: Yes.
MR. JACKSON: Where Matt McCabe said tell Chris to find out, get an update or something, and tell them that the guy never came in the house?
MS. MCCABE: Yes.
MR. JACKSON: This is in response to that text?
MS. MCCABE: Yes.
MR. JACKSON: And what does Brian Albert respond?
MS. MCCABE: Exactly.
MR. JACKSON: One word, correct?
MS. MCCABE: Yes.
MR. JACKSON: Next text, please. This is a green box so I presume this is you?
MS. MCCABE: Yes, it is.
MR. JACKSON: And this is to whom?
MS. MCCABE: To Nicole, to Brian, to Matt.
MR. JACKSON: And what does your text read?
MS. MCCABE: It means, oh, my God.
MR. JACKSON: It's ONG, but it meant to be OMG, correct?
MS. MCCABE: Yes, I do a lot of errors.
MR. JACKSON: Which stands for, "Oh, my God?"
MS. MCCABE: Yes.
MR. JACKSON: Next text, please. Who is this from and who is that to?
MS. MCCABE: So this is from my sister Nicole to myself, to Brian, and to Matt.
MR. JACKSON: And what does that text read?
MS. MCCABE: It says, "I assume it's just to eat, but, Brian, if she is there, ask her what the deal is."
MR. JACKSON: Next text, please. Before I ask you about this text, the last text that was from whom one more time?
MS. MCCABE: My sister Nicole.
MR. JACKSON: It was from your sister Nicole?
MS. MCCABE: Yes.
MR. JACKSON: And she mentions that she a she, pronoun she?
MS. MCCABE: Yes.
MR. JACKSON: Is that referring to Julie Albert?
MS. MCCABE: To be honest, I don't know who she's referring to.
MR. JACKSON: Well, remember the first text started -- or did the first text start with someone reporting that Julie said that Channel 4 was it D&E?
MS. MCCABE: Yes, it did.
MR. JACKSON: So would that prior text mean get Julie Albert to get some updates on what's going on?
MS. MCCABE: I'm --
MR. JACKSON: Let's go back to that last text one more time.
MS. MCCABE: Yeah, I ...
MR. JACKSON: Do you see where it reads, "If she's there?" Does that mean if Julie is at D&E, hence she just reported that Channel 4 is there?
MS. MCCABE: I'm truly not sure who she's referring to as the she.
MR. JACKSON: Okay. Fair enough. Let's go to the next text, please.
MR. JACKSON: Mr. Wolk, I think you missed one. The one above it.
MR. JACKSON: Who's this text from and who is it to?
MS. MCCABE: This text is from myself, and it is to my sister Nicole, to Brian, and to Matt.
MR. JACKSON: And what does this read?
MS. MCCABE: This says, "To ask if we heard if she is a mental hospital."
MR. JACKSON: Next text, please. Who is this is from and who is it to?
MS. MCCABE: This is from me to my sister Nicole, to Brian, and to Matt.
MR. JACKSON: What's the time on this text?
MS. MCCABE: 2:55.
MR. JACKSON: And what does it read?
MS. MCCABE: "Kerry is here going over timeline."
MR. JACKSON: Who is the Kerry referring to?
MS. MCCABE: Kerry Roberts.
MR. JACKSON: What is here?
MS. MCCABE: I would assume here with me in my house.
MR. JACKSON: Next text, please. Who is this from and who is it to?
MS. MCCABE: This is from Brian to me, to Nicole, to Matt.
MR. JACKSON: And what does this text read?
MS. MCCABE: "I did hear that."
MR. JACKSON: Next text, please.
MS. MCCABE: Who is this text from and who is it to? A This text is from me to my sister Nicole, to Brian, and to Matt.
MR. JACKSON: What does it read?
MS. MCCABE: "And we handed the phone to Kerry."
MR. JACKSON: Who is Kerry?
MS. MCCABE: Kerry Roberts.
MR. JACKSON: What phone are you referring to?
MS. MCCABE: Mine.
MR. JACKSON: Who was on the other end of that phone?
MS. MCCABE: On February 1, I believe it could have been Michael Proctor.
MR. JACKSON: Next text, please.
MR. JACKSON: Who is that from and who is it to?
MS. MCCABE: This is from me, to Nicole, to Brian, and to Matt.
MR. JACKSON: What does it read?
MS. MCCABE: She is telling him everything.
MR. JACKSON: Everything is in all caps with an exclamation point, correct?
MS. MCCABE: Yes, it is.
MR. JACKSON: What's the timestamp on this, Ms. McCabe?
MS. MCCABE: 2:55.
MR. JACKSON: Who is the him that you're referring to in this text?
MS. MCCABE: I believe it was Michael Proctor.
MR. JACKSON: Next text, please. Who is this from and who is this to?
MS. MCCABE: This is from me to Nicole, to Brian, to Matt.
MR. JACKSON: What's the timestamp on this text?
MS. MCCABE: 2:55.
MR. JACKSON: Same minute that you sent the last text?
MS. MCCABE: Yes.
MR. JACKSON: "She's telling him everything."
MS. MCCABE: Yes.
MR. JACKSON: And then you follow up with what?
MS. MCCABE: "All the stuff."
MR. JACKSON: Next text, please. Who is this responding text from?
MS. MCCABE: This is from Matt to myself, Nicole, and Brian.
MR. JACKSON: And what is the timestamp on this?
MS. MCCABE: 4:35.
MR. JACKSON: What does the read?
MS. MCCABE: "Yep, if she pleads out, it will end. If she fights it, it will be an episode."
MR. JACKSON: Who is she?
MS. MCCABE: I am assuming that would be Ms. Read.
MR. JACKSON: The next text, please. Who is this from and who is it to?
MS. MCCABE: This is from Nicole, to me, to Matt, and to Brian.
MR. JACKSON: And what does this read?
MS. MCCABE: She liked the text above.
MR. JACKSON: The previous text?
MS. MCCABE: Yes.
MR. JACKSON: Meaning like a thumbs up or a like?
MS. MCCABE: Yeah, it just says like, so.
MR. JACKSON: The that reads, "Yeah, if pleads, it will end. If she fights, it will be an episode."
MS. MCCABE: Yes.
MR. JACKSON: Next text, please. Who is it from and who is it to?
MS. MCCABE: This is from Matt. Oh, sorry. From me, to Nicole, and to Brian.
MR. JACKSON: And what does this read?
MS. MCCABE: Brian sitting separate.
MR. JACKSON: Is that a period or a comma? I obviously can't see. Is that a period or a comma between Brian and sitting, or can you tell?
MS. MCCABE: I can't tell if it is or if it's just like the way it printed out. I'm not sure.
MR. JACKSON: The next text, please. Who is this from and who is it to?
MS. MCCABE: Brian to me, Nicole, and Matt.
MR. JACKSON: What's the timestamp on this?
MS. MCCABE: That is 4:55.
MR. JACKSON: And what does that text read?
MS. MCCABE: "Okay."
MR. JACKSON: And the next text? This is another green bubble. Who's this from and who's it to?
MS. MCCABE: This is me, Matt -- I'm sorry. Me, Nicole, Matt, and Brian.
MR. JACKSON: And what did you say -- what did you write in this text?
MS. MCCABE: I wrote, "You listening."
MR. JACKSON: And what's the timestamp on this?
MS. MCCABE: That is 5:15.
MR. JACKSON: I'm sorry. It would be what time?
MS. MCCABE: Oh, I'm sorry. 5:15.
MR. JACKSON: And in fact at 5:15, Ms. Roberts was in your house being personally interviewed by Massachusetts State Police, correct?
MS. MCCABE: They were there. I'm not sure if this is the exact time but, yes, they did come over.
MR. JACKSON: Just to be clear and to orient us, there was a phone conversation that you were privy to between Kerry Roberts and Michael Proctor, telephonically, correct?
MS. MCCABE: She was at --
MR. JACKSON: Earlier in the day.
MS. MCCABE: Yeah, earlier in the day, he had called me and then Kerry had asked to speak with him.
MR. JACKSON: And that's the handed her the phone, correct?
MS. MCCABE: Yes.
MR. JACKSON: And later, a couple of hours later, five-ish or so, she was still at your house, Michael Proctor came over and interviewed her at your home?
MS. MCCABE: No.
MR. JACKSON: I'm sorry. Not Michael Proctor. Massachusetts State Police.
MS. MCCABE: Came over and spoke to myself, her, and Matt.
MR. JACKSON: And you listening to the group, correct?
MS. MCCABE: Yes.
MR. JACKSON: Who was that specifically directed to?
MS. MCCABE: I honestly don't know.
MR. JACKSON: Was there anybody else in the house during her interview other than you and the troopers?
MS. MCCABE: My husband Matt, my daughter, her friend, my other daughter.
MR. JACKSON: So of the people on this text chain, the only people that would have been in the house that could have conceivably quote/unquote listened would be Matt McCabe, correct?
MS. MCCABE: Yes.
MR. JACKSON: Next text, please. Who is this from and who is it to?
MS. MCCABE: It's from me, to Matt, Nicole, and Brian.
MR. JACKSON: What does it read?
MS. MCCABE: "Cops here again."
MR. JACKSON: You were reporting to the others on this text stream that the police had arrived at your house? They were in your house with you and Kerry as you just described, correct?
MS. MCCABE: Yes, I was just telling them that they were here again.
MR. JACKSON: Next text, please. This is from and who is it to?
MS. MCCABE: This is from my sister -- sorry -- Nicole to myself, Brian and Matt and Nicole says, "Call us after."
MR. JACKSON: And what time was this?
MS. MCCABE: This was 5:23.
MR. JACKSON: Did you take this to mean that she wanted you to call the group after Kerry Roberts' interview and update about them about that interview?
MS. MCCABE: I took it that she just wanted -- yeah, to call and see what the cop said, and if there was any update, any information.
MR. JACKSON: Next text, please. Who is this from and who is it to?
MS. MCCABE: This is from Matt, and it's to myself, Nicole, and Brian.
MR. JACKSON: What time was this?
MS. MCCABE: This is at 5:31.
MR. JACKSON: And 5:31, what does Mr. McCabe write to the group?
MS. MCCABE: "This girl could write a book. Nonstop."
MR. JACKSON: Was that in reference to Kerry Roberts having her interview with the Massachusetts State Police?
MS. MCCABE: Yes, it was.
MR. JACKSON: And the "this girl" is Kerry, correct?
MS. MCCABE: Yes.
MR. JACKSON: Next text, please. Who is this from and who is this to?
MS. MCCABE: This is from me to Nicole, Brian, and Matt.
MR. JACKSON: What time was this text?
MS. MCCABE: 5:32.
MR. JACKSON: And what do you write to the group?
MS. MCCABE: "I love it."
MR. JACKSON: And is this in direct response to Matt McCabe's, your husband's text, about Kerry Roberts could write a book, correct? A Yes.
MR. JACKSON: Suggesting that both you and Mr. McCabe were listening to her interview, correct?
MS. MCCABE: We could hear different parts of it, correct.
MR. JACKSON: Next text, please. And who's this from and who is it to?
MS. MCCABE: This is from me to Nicole, to Brian, and to Matt.
MR. JACKSON: And what do you write --
MS. MCCABE: I wrote, "She is telling them everything."
MR. JACKSON: Similar to the text that we earlier saw that was in all caps where you indicated she's telling them everything, correct?
MS. MCCABE: Yes.
MR. JACKSON: On the phone. That was in reference to what she was saying on the phone.
MS. MCCABE: Yes.
MR. JACKSON: This is in reference to the live interview, correct?
MS. MCCABE: Yes.
MR. JACKSON: Also indicating that you were listening to and have -- were privy to the content of her conversation with the police?
MS. MCCABE: I could hear bits and pieces of it, yes.
MR. JACKSON: Enough to say that she's telling them everything?
MS. MCCABE: When I use the word everything, it was -- I meant in the -- not only was she telling them what had happened, but she was also telling them opinions and different things.
MR. JACKSON: Okay. So you could hear that much?
MS. MCCABE: I could hear her saying some opinions.
MR. JACKSON: Next text, please. Who's this from and who's it to?
MS. MCCABE: This is from my sister Nicole to myself, to Matt, and to Brian.
MR. JACKSON: And this is in response to, "She is telling him everything," correct?
MS. MCCABE: Yes.
MR. JACKSON: And the text reads what?
MS. MCCABE: "Good."
MR. JACKSON: Next text, please. Who's this from and who's it to?
MS. MCCABE: This is from Matt to myself to Nicole and to Brian.
MR. JACKSON: And what does it read?
MS. MCCABE: He says, "Going to miss the basketball team at this rate."
MR. JACKSON: You mean Matt says.
MS. MCCABE: Oh, sorry. Matt says, "Going to miss the basketball game at this rate."
MR. JACKSON: Indicating that he was still in the house, still privy to the conversation between Kerry Roberts and the Massachusetts State Police?
MS. MCCABE: He was waiting for them to talk, for Kerry talk was -- as he said, she could write a book. So he felt he was going to miss the game because she just kept talking.
MR. JACKSON: Next text, please. That would be the end of it?
MS. MCCABE: Yeah.
MR. JACKSON: Is that the last text on the page?
MS. MCCABE: Yes, it is.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes. A Do you want both of them?
MR. JACKSON: Yes, please. Ms. McCabe --
MS. MCCABE: Yes.
MR. JACKSON: -- these text messages were on a private chat, both the one between you and your sister as well as the group chat, correct? It was a private chat. It's not open to the public?
MS. MCCABE: Correct.
MR. JACKSON: You never intended, obviously, for any of those texts to become public, correct?
MS. MCCABE: It was -- I handed my phone over so I knew all my texts would be seen.
MR. JACKSON: When you were writing the text, when the group was chatting back and forth or texting back and forth, those were intended to be private texts between and among just the people on that text string, correct?
MS. MCCABE: I just was texting my family. I was thinking anymore who was going to see it.
MR. JACKSON: You certainly did not expect, when you were writing those texts, that the defense, Ms. Karen Read's representatives, would ever get a hold of those texts. That was not in your mind, correct?
MS. MCCABE: It would have never been in my mind, no.
MR. JACKSON: That is a textbook example, what we've just seen, of witnesses colluding with one another about the subject matter that's under investigation, correct?
MR. BRENNAN: I'd move for an instruction.
JUDGE CANNONE: All right. Jurors, disregard that comment completely. Disregard that question.
MR. JACKSON: Your Honor, may we approach?
JUDGE CANNONE: Yes.
(Sidebar commences:
MR. BRENNAN: Opinions and inflammatory comments are not evidence where it leaves a great impact on the jury. Mr. Jackson likely doesn't care what the answer is. The objection to draw attention to it, and then vesting that in the jurors' minds with no basis in evidence is inflammatory, it's unfairly prejudicial, and I would suggest that not only should there be a curative instructions when those comments are made, they should be prohibited.
JUDGE CANNONE: It's argumentative, Mr. Jackson.
MR. JACKSON: It's not argumentative. I asked the question, is it colluding.
JUDGE CANNONE: Textbook.
MR. JACKSON: Okay. I'll take textbook out.
JUDGE CANNONE: No.
MR. JACKSON: Is that --
JUDGE CANNONE: The question --
MR. JACKSON: -- an example of witnesses colluding with and among each other? That is a perfectly reasonable question given what we've just seen. It's a fact question.
JUDGE CANNONE: I find that it's not. I'm excluding the question.
MR. JACKSON: And I'll take the word textbook out and ask the question again. I'm entitled to her response, and the jurors are entitled to hear what her response is --
JUDGE CANNONE: And --
MR. JACKSON: -- to obvious collusion between and among witnesses in this case, I should be able to ask her is that what you were doing, and if --
JUDGE CANNONE: You can ask her if she was colluding.
MR. JACKSON: Okay. Thank you.
end of sidebar.)
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: In the texts that we just saw, you were colluding with other witnesses, percipient witnesses in this case through those text messages, were you not?
MS. MCCABE: I was not.
MR. JACKSON: You were organizing your statements to the police based on what you overheard or what you heard during Kerry Roberts' interview with the Massachusetts State Police, weren't you?
MS. MCCABE: No, I was not.
MR. JACKSON: You were reporting back to other percipient witnesses what you heard and saw during other witnesses' statements to the police, to wit: Kerry Roberts, correct?
MS. MCCABE: I was telling them that Kerry was speaking to police.
MR. JACKSON: And you told them, she's telling them, "everything," correct?
MS. MCCABE: Yes, I told them something opinions that she stated.
MR. JACKSON: And when Mr. McCabe said, "She could write a book," in other words she's going on and on, your statement was, "I love it," correct?
MS. MCCABE: Yes.
MR. JACKSON: And you reported back to other witnesses who were not privy to Ms. Roberts's statements to police, correct?
MS. MCCABE: To my sister and to my brother-in-law, yes.
MR. JACKSON: And then your sister asked for updates when Kerry Roberts was done, correct?
MS. MCCABE: I don't know if it was in regard to updates when she was done, or updates like did they tell us anything, was anything new. We were still all trying to figure out what had happened.
MR. JACKSON: The four of you were discussing the facts surrounding this case not only with each other, but discussing interviews, formal police interviews, that you heard or overheard with another witness, weren't you?
MS. MCCABE: I told them some of the things that Kerry Roberts said, yes.
MR. JACKSON: And you were happy about what she said after you had created this timeline with her, correct?
MS. MCCABE: The timeline had nothing to do with it.
MR. JACKSON: But it was certainly chronologically. Her interview with the police was after this timeline had already been created between you and Kerry Roberts, correct?
MS. MCCABE: Yes, we both put down what had happened so we would remember.
MR. JACKSON: And then once she was interviewed, you were responding to the rest of the group. She's telling them everything, meaning everything we just crafted in this timeline, right?
MS. MCCABE: No, I meant she was telling them everything. She was telling her personal opinions about Ms. Read.
MR. JACKSON: I want to change gears for second Ms. McCabe and ask you about that visit that you took to Michael Lank's house.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, Your Honor.
MR. JACKSON: Have you and Ms. Roberts discussed that visit to Michael Lank's house before your testimony before you testified to it for the first time in May of 2024, about a year ago? Did you all discuss that at all?
MS. MCCABE: I don't recall.
MR. JACKSON: You testified under oath in that proceeding that you went, and I want to be very clear about this, that you went from 1 Meadows, the O'Keefe's residence, John O'Keefe's residence, directly to Michael Lank's residence which is another neighborhood in the same town, correct?
MS. MCCABE: Yes. Correct.
MR. JACKSON: You indicated that you were there to drop off on one Kerry's daughters; is that right?
MS. MCCABE: Yes.
MR. JACKSON: That's how you testified in May of 2024, about a year ago?
MS. MCCABE: Yes.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: You spoke to Lieutenant Tully about this very same visit on May 10, 2024, before your actual testimony in that other proceeding a year ago, correct?
MS. MCCABE: Yes.
MR. JACKSON: And what you all talked about was your visit and your travels over to Sergeant Lank's -- by the way, it's Sergeant Michael Lank of Canton PD, correct?
MS. MCCABE: Yes.
MR. JACKSON: The same Michael Lank that we've talked about?
MS. MCCABE: Yes.
MR. JACKSON: You talked to over to Lieutenant Tully about that trip over to Michael Lank's house, correct?
MS. MCCABE: Yes.
MR. JACKSON: You indicated that in that interview with Lieutenant Tully that you went over to the Lank residence with Kerry Roberts to pick up her daughter at the residence, correct? Not to drop her off but to pick her up.
MS. MCCABE: She was with us at Meadows and we dropped her off.
MR. JACKSON: Right. I know that's what your testimony was a couple of days ago. I'm asking, when you talk to Lieutenant Tully on May 10, 2024, before your testimony last year, did you tell Lieutenant Tully you were actually there to drop -- I'm sorry -- to pick up her daughter? That's why we went to Michael Lank's house. That's why you went to Mike Lank's house?
MS. MCCABE: I like to Michael Lank's to drop her daughter off.
MR. JACKSON: What did you tell Lieutenant Tully?
MS. MCCABE: That I went to drop her daughter off.
MR. JACKSON: So you didn't say pick her up to him?
MS. MCCABE: I don't believe so, no.
MR. JACKSON: So if he said that, that would be another example --
MR. BRENNAN: Objection.
MR. JACKSON: -- of an incorrect report?
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you remember exactly what it was that you told him during that interview?
MS. MCCABE: I know that (c) was with us at Meadows Ave., and we dropped her off at Mike Lank's. So it could have been slash pick up and drop off, that could have happened. But I had -- we had (c) with us when we dropped her off.
MR. JACKSON: Okay. So you believe that may have been his mixup, not yours?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Is that -- I'm sorry. Do you remember exactly what it was that you told Trooper Tully -- Lieutenant Tully during that interview?
MS. MCCABE: I know I said that we dropped her off.
MR. JACKSON: It was 11 days later that you actually testified, correct?
MS. MCCABE: Eleven days later from?
MR. JACKSON: After the interview -- about ten or eleven days after the interview with Lieutenant Tully that you actually testified in court about -- in a proceeding about this issue?
MS. MCCABE: It could have been. I don't know the exact dates of when I testified.
MR. JACKSON: But you testified, say, May 21st --
MS. MCCABE: Yes.
MR. JACKSON: Okay. When you testified in that other proceeding, you had testified that you had dropped off Kerry Roberts' daughter, not picked her daughter up; is that right?
MS. MCCABE: I know I dropped her off, yes.
MR. JACKSON: Did you also talk to Kerry Roberts about her testimony and what she was going to say about dropping off or picking up her daughter?
MS. MCCABE: No.
MR. JACKSON: You never talked to her about it before you testified before she testified last year?
MS. MCCABE: We both know what happened, so I --
MR. JACKSON: I'm just asking if you had a discussion. That's all I'm asking.
MS. MCCABE: I have no idea if we discussed that.
MR. JACKSON: So you might have.
MS. MCCABE: I have no idea.
MR. JACKSON: And in the last year, let's clock it around all the way to now, you've probably discussed it additionally with her, correct? A Probably not that detail, no.
MR. JACKSON: Now, you also indicated -- by the way you were -- the reason that this subject matter came up with Lieutenant Tully is you confronted with certain location data records indicating that you are at Michael Lank's house for a period of time, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained. Ask it differently.
MR. JACKSON: Were you provided any records and asked about records that showed that you were at Michael Lank's house on January 30th of 2022?
MS. MCCABE: I was asked if I had gone to Michael Lank's house, and to be honest, I completely forgotten because those days were just a complete blur, but then I remembered that after we left Meadows Ave., we did drop (c) , her -- I'm sorry -- her daughter off at Michael Lank's.
MR. JACKSON: All right. Do you recall ever seeing a document, seeing something that indicated that you were actually -- a piece of paper, a document, record, anything indicating that you were seen at Michael Lank's house through GPS location data?
MS. MCCABE: Did I see a record of that?
MR. JACKSON: Correct. Did Lieutenant --
MS. MCCABE: No, he didn't show me a record.
MR. JACKSON: He just asked you.
MS. MCCABE: He just asked me.
MR. JACKSON: Did he tell you during that course of that interview that he had been provided with GPS data records indicating that you went to Michael Lank's house?
MS. MCCABE: I don't remember the specifics of what he asked, but I know that he did -- asked me if I had been there.
MR. JACKSON: Did he tell you that he had received those GPS data records from the defense?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did he tell you anything about receiving any documents from the defense that prompted the question where you were on January 30?
MS. MCCABE: I don't recall.
MR. JACKSON: Before that interview on May 10, with Lieutenant Tully, this is proceeding your testimony last year, had you ever reported that you went to Michael Lank's house, Sergeant Lank's house on January 30, to anybody?
MS. MCCABE: No. To be honest, I completely forgot about it.
MR. JACKSON: You indicated that during that visit you sat outside in a car, in Kerry's car, correct?
MS. MCCABE: Yes.
MR. JACKSON: Basically for the entire visit; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You indicated that you did not go in the house except to use the restroom, possibly, correct?
MS. MCCABE: I have a faint memory that I ran in to use the bathroom.
MR. JACKSON: You indicated that you did not seen Sergeant Lank at his home, correct?
MS. MCCABE: I don't believe I did, no.
MR. JACKSON: What time of night was this?
MS. MCCABE: I don't know. We had left -- we had have been at Meadows for a while, and then we left. I dropped (c) off and then I went home. Yeah, I don't know my time. Maybe afternoon. I'm not sure. I'm sorry.
MR. JACKSON: Your Honor, I have a 10 page document that I'd like to have backed as identification with the Court's permission?
JUDGE CANNONE: Sure. Show Mr. Brennan.
MR. JACKSON: Mr. Brennan is just going to review that document. I have no problem with that.
MR. BRENNAN: Thank you.
MR. JACKSON: May I approach? A Thank you.
MR. JACKSON: Do you recognize the document --
JUDGE CANNONE: It hasn't been marked yet.
MR. JACKSON: I'm sorry. I ask that it be marked for identification at this point, just only for identification.
JUDGE CANNONE: Right.
MR. JACKSON: Sorry.
JUDGE CANNONE: So Madam Court Reporter will now hand it back to you.
(Whereupon Exhibit L, Map/GPS Printout/Location Data, was marked for identification.)
JUDGE CANNONE: Thank you. Go ahead, Mr. Jackson.
MR. JACKSON: Thank you, Your Honor.
MR. JACKSON: Once you get the document back, I'll ask you a few quick questions on that.
MS. MCCABE: Okay.
MR. JACKSON: You have the document in front of you?
MS. MCCABE: Yes.
MR. JACKSON: Let's take a look at the first page of that document just to orient yourself. Do you see that that appears to be a map, generally?
MR. BRENNAN: I object.
JUDGE CANNONE: All right. So I'm just going to ask you to take a look at the document and don't describe it.
MR. JACKSON: Sure.
MR. JACKSON: Take a look at the first page and tell me if you recognize anything on that page?
MS. MCCABE: I do, yes.
MR. JACKSON: What do you recognize generally about that document?
MR. BRENNAN: I object.
JUDGE CANNONE: I'll see you, Counsel, at sidebar. May I have that please, Ms. McCabe?
(Sidebar commences:
JUDGE CANNONE: All right. What do I have, Mr. Jackson, and what are you doing with it?
MR. JACKSON: This is location data that's been pulled from her phone that's been produced to the Commonwealth.
JUDGE CANNONE: Is it a Cellebrite?
MR. JACKSON: It's not from Cellebrite. It's just location data that was generated from the extraction --
JUDGE CANNONE: By who?
MR. JACKSON: -- showing the location of her phone at different times.
JUDGE CANNONE: Who was it extracted by?
MR. JACKSON: It was extracted by -- I mean, the extraction was done by the Commonwealth, but we received the extraction and this report was conducted by I think it was Maggie Gaffney. I think it was Ms. Gaffney. I don't expect that she's going to recognize this, but she's going to recognize this. All I want to do is --
JUDGE CANNONE: All right. So on page 1, so you're pointing to all the circles. You don't expect that she'll recognize the circles.
MR. JACKSON: Right.
JUDGE CANNONE: What is it that you want her to recognize?
MR. JACKSON: Her home address and then a few pages later, 34 Fairview, and a few pages later, Michael Lank's residence just as it pertains to the map, only. I don't think -- I'll ask her, do you recognize what these are, and she's going to say, no, I think.
JUDGE CANNONE: All right. So what's your objection, Mr. Brennan?
MR. BRENNAN: Well, it's hearsay, and he's asking her to testify about some information in a chalk or a computer printout that they've developed, and so she knows where she lives. She knows where Mr. Lank's home is. She shouldn't be discussing hearsay in a document when that document hasn't been admitted. So it's just rank hearsay.
JUDGE CANNONE: Do you have another map -- is somebody going to come in and tie up all these circles?
MR. JACKSON: Yes, Maggie Gaffney.
JUDGE CANNONE: So let's keep it as identification until that happens.
MR. JACKSON: That was my intent.
JUDGE CANNONE: So nothing displayed on the screen.
MR. JACKSON: Correct.
JUDGE CANNONE: And you're just going to ask her where she lives. I don't really want her announcing her address.
MR. JACKSON: I will not ask her that. I'm fully prepared to say don't give me the address, does this map display, generally, where you live. It's no different -- its' not hearsay.
JUDGE CANNONE: Yeah, okay. So I'm going to allow it.
MR. BRENNAN: Would you allow it de bene?
JUDGE CANNONE: I mean, it's just for -- oh, the questions? Yes. You'll have to remind me. I mean, if you think it's something that should be stricken because they don't -- it's not going into evidence, so the questions are merely what, does this depict --
MR. JACKSON: Do you see what generally depicts your residence and the location of your residence, and do you see on the document the time. That's the only two questions I'm going to ask.
JUDGE CANNONE: And you're going to ask her what they are?
MR. JACKSON: What the times are?
JUDGE CANNONE: Yes.
MR. JACKSON: No. All of that will come in through Maggie Gaffney.
MR. BRENNAN: If they're calling Ms. Gaffney, then I wouldn't have an objection to identifying where she lives and the time if that's what -- they're going to follow-up, I don't want to be a stickler on timing.
JUDGE CANNONE: And if they don't, they'll move to strike that line of questioning. You'll have to remember. If you record the time and the date of when that testimony is. It's going to be a long trial. I'll hand this back to her. This is for identification.
end of sidebar.)
JUDGE CANNONE: All right, Ms. McCabe, I'm going to give you this, and you'll be asked a few more questions.
MS. MCCABE: Thank you.
MR. JACKSON: May I continue, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Can you look at that first page?
MS. MCCABE: (Witness complies.)
MR. JACKSON: Do you recognize a location that's been pinpointed on that page?
MS. MCCABE: I do.
MR. JACKSON: Okay. Without telling me the address, what do you recognize that as being?
MS. MCCABE: My house.
MR. JACKSON: Okay. And do you see in the callout box in the middle the page?
MS. MCCABE: Yes.
MR. JACKSON: Do you see a date and time?
MS. MCCABE: Yes.
MR. JACKSON: What is the date and time?
MS. MCCABE: It is January 30, at 12:13.
MR. JACKSON: Take a look at page 2 on what's been marked for identification.
MS. MCCABE: (Witness complies.)
MR. JACKSON: Do you see a location pinpointed on that page?
MS. MCCABE: I do, yes.
MR. JACKSON: What do you recognize that location to be?
MS. MCCABE: John O'Keefe's home.
MR. JACKSON: Is that what we talked about on Meadows?
MS. MCCABE: Yes, Meadows.
MR. JACKSON: Do you see a time and date for that location?
MS. MCCABE: Yes, 1/30/2022 at 12:19.
MR. JACKSON: At 12:19 p.m.?
MS. MCCABE: Yes.
MR. JACKSON: Okay. Thank you. If you could turn to page 4. Skip over page 3 and just go straight to page 4.
MS. MCCABE: (Witness complies.)
MR. JACKSON: Do you recognize something's been pinpointed on that map as well?
MS. MCCABE: Yes.
MR. JACKSON: What is that? Again, don't give me the full address, what is that full location that's been pinpointed?
MS. MCCABE: That is my house.
MR. JACKSON: Okay. And do you see a date and time for that location?
MS. MCCABE: Yes, that's 1/30 at 5:21.
MR. JACKSON: When you say 1/30, January 30 --
MS. MCCABE: Sorry. January 30, 2022 at 5:21.
MR. JACKSON: Okay. Looking at page 5, do you see a location --
MS. MCCABE: Yes.
MR. JACKSON: -- pinpointed on that map as well?
MS. MCCABE: Yes, I do.
MR. JACKSON: And what's the date and time of that location?
MS. MCCABE: That is also 1/30/2022 and that is at 5:28.
MR. JACKSON: Got it. Take a look at page 6. Do you see a location pinpointed on that map?
MS. MCCABE: Yes.
MR. JACKSON: Again, what is that location?
MS. MCCABE: That is 1/30/2022.
MR. JACKSON: The location?
MS. MCCABE: Oh, I'm sorry. That is Fairview.
MR. JACKSON: Appear to be 34 Fairview?
MS. MCCABE: Yes.
MR. JACKSON: And what's the date and time?
MS. MCCABE: 5:36.
MR. JACKSON: Take a look at page 7. Do you see anything located on that pinpoint location on that page?
MS. MCCABE: Yes.
MR. JACKSON: What's the date -- I'm sorry. What is that location?
MS. MCCABE: That's Fairview again.
MR. JACKSON: And what's the date and time?
MS. MCCABE: That is 1/30/22 at 5:40.
MR. JACKSON: So just to be clear, the page before was 5:36 and this page is 5:40?
MS. MCCABE: Yes.
MR. JACKSON: Take a look at page 8. Do you see what's pinpointed on that page?
MS. MCCABE: Yes.
MR. JACKSON: What is that location, without giving me the address?
MS. MCCABE: I believe that is Mike Lank's home.
MR. JACKSON: What's the date and time?
MS. MCCABE: 1/30/2022.
MR. JACKSON: January 30, 2022 and the time, please?
MS. MCCABE: 5:43.
MR. JACKSON: Is -- you're familiar with Canton, obviously?
MS. MCCABE: Yes.
MR. JACKSON: Much more than we are. Is driving time from 34 Fairview to Michael Lank's house consistent with about three to four minutes?
MS. MCCABE: It could be, but they have multiple stop signs.
MR. JACKSON: Okay.
MS. MCCABE: And due to the weather.
MR. JACKSON: Right. Take a look at page 9.
MS. MCCABE: Yes.
MR. JACKSON: Do you see another pinpointed address?
MS. MCCABE: Yes, I believe it's the same one.
MR. JACKSON: The same address on Oakdale?
MS. MCCABE: As Mike Lank.
MR. JACKSON: Okay. And what's the time -- what's the date of that?
MS. MCCABE: 1/30/2022 and that is 6:28.
MR. JACKSON: And 6:28 is about 45 after minutes after 5:43, give-or- take, correct?
MS. MCCABE: Yes.
MR. JACKSON: Finally, the last page, page 10, do you see yet another pinpointed address?
MS. MCCABE: I do, yes.
MR. JACKSON: Is that your address?
MS. MCCABE: Yes, it is.
MR. JACKSON: And what's the date and time of that pinpoint?
MS. MCCABE: That is 1/30/22 as well, and that is at 6:34.
MR. JACKSON: And is -- would it be safe to say that your address from Mike Lank's address maybe six or seven minute drive?
MS. MCCABE: Yeah, depending.
MR. JACKSON: We were talking about what happened when you were that Mike Lank's that evening. By the way, does any of that refresh your recollection about the time that you went to Mike Lank's house?
MS. MCCABE: Yes, I knew it was after Meadows in the middle the day, yes.
MR. JACKSON: So closer to 5:45, 6:30, correct?
MS. MCCABE: Yes.
MR. JACKSON: And this is in January in Boston; is that right? The Greater Boston area?
MS. MCCABE: Yes.
MR. JACKSON: It gets dark really early?
MS. MCCABE: Yes.
MR. JACKSON: It was a blizzard?
MS. MCCABE: The night before, yes.
MR. JACKSON: Safe to say that it was dark out?
MS. MCCABE: Yes.
MR. JACKSON: Safe to it was cold out?
MS. MCCABE: Yes.
MR. JACKSON: The blizzard was still brewing, correct?
MS. MCCABE: I think it had stopped snowing by then.
MR. JACKSON: Still freezing cold?
MS. MCCABE: I believe so.
MR. JACKSON: And your testimony is you sat outside in a car with Kerry Roberts and Michael Lank's wife for 45 minutes?
MS. MCCABE: Yes.
MR. JACKSON: You actually -- and I'm assuming the car was running?
MS. MCCABE: Yes.
MR. JACKSON: Heat had to be on full blast?
MS. MCCABE: Yes.
MR. JACKSON: You were dressed in winter gear?
MS. MCCABE: Yes.
MR. JACKSON: Because it's freezing out, correct?
MS. MCCABE: Correct.
MR. JACKSON: You actually got out the car and went into the house to go to the restroom at one point?
MS. MCCABE: I have a faint memory I think I did, yes.
MR. JACKSON: And the three of you didn't just decide, let's go in the house?
MS. MCCABE: No, we didn't.
MR. JACKSON: You actually came out of the restroom, came out of the nice warm house and fought the cold and got back in the car, according to you, correct?
MS. MCCABE: Yes, I went back in the car because Kerry was going to bring me home.
MR. JACKSON: You stated on direct examination that -- and you stated again today, you stopped by Michael Lank's house, Sergeant Lank's house, directly from the O'Keefe residence as sort of a -- my word, not yours, sort of a pit stop to drop off Kerry Roberts' daughter, correct?
MS. MCCABE: Correct.
MR. JACKSON: In point of fact, you actually drove from your personal residence to Michael Lank's house as a destination, didn't you?
MS. MCCABE: I don't remember that. This is what this piece of paper says. I remember just leaving Meadows and dropping off (c) .
MR. JACKSON: In point of fact, it wasn't an errand, it wasn't to drop anybody off. It was a destination that you went to from your house to Sergeant Lank's house on January 30, 2022, wasn't it?
MS. MCCABE: No, we went to drop off (c) .
MR. JACKSON: Was (c) at your house?
MS. MCCABE: She was with us. She was at Meadows and then we went to drop her off.
MR. JACKSON: Right. She was never with you at your house, was she?
MS. MCCABE: I don't remember going to my house.
MR. JACKSON: So if she wasn't with you at your house, there would be no reason to drop a child off from your house to Michael Lank's house, correct?
MS. MCCABE: (c) was in the car with us when we dropped her off at Michael Lank's house. That's why we went to Officer Lank's house, yes.
MR. JACKSON: And in point of fact, you actually went from your house and did make a pit stop to 34 Fairview before you went to Michael Lank's house, didn't you?
MS. MCCABE: We drove by and stopped, yes. Slowly stopped, yes.
MR. JACKSON: And you went in the house and spoke with someone?
MS. MCCABE: No, I never went in the house.
MR. JACKSON: Why did you come -- go behind and just stop?
MS. MCCABE: I think Kerry and I just went by to, like, take a look at it. We were still trying to figure everything out.
MR. JACKSON: You stayed there for four to six minutes?
MS. MCCABE: I'd have to look at their report, but, yeah, we were sitting in the car and just like, oh, my God looking.
MR. JACKSON: Didn't go in the house?
MS. MCCABE: We didn't go in the house.
MR. JACKSON: Nobody came outside to talk to you?
MS. MCCABE: No.
MR. JACKSON: You didn't speak to Nicole?
MS. MCCABE: I don't believe so.
MR. JACKSON: Possible?
MS. MCCABE: Like I said, Kerry and I just kind of drove by looking at the area.
MR. JACKSON: And that's before you went to Michael Lank's house, correct?
MS. MCCABE: That was on the way to Michael Lank's.
MR. JACKSON: So in point of fact, you didn't go directly from 1 Meadows to Michael Lank's house?
MS. MCCABE: I thought I had. I truly thought I had.
MR. JACKSON: But now your memory is refreshed?
MS. MCCABE: My memory is not -- this isn't refreshing my memory. I do not remember going by my house before Michael Lank's.
MR. JACKSON: Do you remember testifying a year ago that -- well, let me ask it this way. Do you remember denying a year ago that you ever even stopped by 34 Fairview?
MS. MCCABE: I don't remember that, no.
MR. JACKSON: Would it refresh your recollection to take a look at your prior testimony?
MS. MCCABE: Sure.
MR. JACKSON: Take a look at that page that top highlighted portion.
MS. MCCABE: (Witness complies.)
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: On May 21st of last year, you were asked about this very thing a prior proceeding, correct?
MS. MCCABE: Correct.
MR. JACKSON: And at that time you denied it altogether ever going by 34 Fairview, correct?
MS. MCCABE: No, I believe the paper says, I never stopped by, but we drove by.
MR. JACKSON: And now you're saying that you did stop?
MS. MCCABE: Stopping by and driving by, that's something different to me. Stopping by, I look as then you go in the house. Driving by is you just drive-by. So we just drove by slowly and kind of looked at the scene.
MR. JACKSON: And, Ms. McCabe, I think you just said that you maybe even spoken with Nicole?
MS. MCCABE: We didn't speak with Nicole, no. We were in the car, Kerry and I.
MR. JACKSON: You are denying that you ever spoke with call or any other member of the Albert family or anybody at 34 Fairview as you sit here today?
MS. MCCABE: As I sit here today, I'm telling you that we slowly drove by.
MR. JACKSON: So again, last question on this point, you did not -- you now admit you drive from 1 Meadows over to 34 -- I'm sorry -- over Michael Lank's house directly to drop off Kerry's daughter?
MS. MCCABE: My memory is we did drive by 1 Meadows. I know what this piece of paper says. I'm telling you that just -- my memory is we left Meadows and went down Fairview and then went to Michael Lank's, but this paper is saying I stopped at my house first. I don't remember that.
MR. JACKSON: And all your --
MS. MCCABE: I was in shock.
MR. JACKSON: Sorry.
MS. MCCABE: So a lot of things from that day are foggy. Certain things, certain details I may have forgotten.
MR. JACKSON: And all of your testimony over the last several days is based on that memory that you just described to these jurors, correct?
MS. MCCABE: There's certain things I'll never forget, correct.
MR. JACKSON: I'm going to ask you a couple questions you may, depending upon your answer, you may -- depending on what you just answered, you may or may not remember, but let's see. Isn't it true that at 12:13 p.m., you left (f) on January 30th of 2022?
MS. MCCABE: Yes. According to this, yes.
MR. JACKSON: Isn't it true at 12:19 you arrived at 1 Meadows, the O'Keefe residence?
MS. MCCABE: According to this, yes.
JUDGE CANNONE: Are you asking her regarding --
MR. JACKSON: I'm asking her memory, not according to the document. A Oh, my memory. I don't remember exact times.
MR. JACKSON: Thank you. Isn't it true, Mrs. McCabe, that at 5:12 p.m., you left 1 Meadows this is the O'Keefe residence, 5:12 in the evening?
MS. MCCABE: I don't remember the times that I left.
MR. JACKSON: Isn't it true that at 5:21, you arrived back at your address at (f)(f) ?
MS. MCCABE: I do not remember that.
MR. JACKSON: Isn't it true that at 5:28, seven minutes later, you actually left your address at (f)(f) ?
MS. MCCABE: Again, I don't remember going by my house.
MR. JACKSON: Isn't it true that at 5:36, you arrived at 34 Fairview and stayed for at least four minutes?
MS. MCCABE: I know we drove by.
MR. JACKSON: Isn't it true that at 5:40 or just thereafter, you left 34 Fairview?
MS. MCCABE: I know we left and went to Mike Lank's.
MR. JACKSON: And isn't it true at 5:43 you arrived on that Oakdale Road address at Sergeant Lank's house?
MS. MCCABE: I'm not sure of the exact time, but, yes, we did go to Sergeant Lank's house.
MR. JACKSON: And isn't it true that at 6:28, almost 45 minutes later, actually a little bit better than 45 minutes later, you left that address at Michael Lank's house and drove back to your house directly?
MS. MCCABE: After leaving Mike Lank's I went home, correct.
MR. JACKSON: And you arrived at your house at 6:34, correct?
MS. MCCABE: According to the paper.
MR. JACKSON: What about according to your memory?
MS. MCCABE: I don't remember exact times.
JUDGE CANNONE: Mr. Jackson, is this a good place to take the morning break?
MR. JACKSON: It is. I'm about to shift gears.
JUDGE CANNONE: All right. Jurors, we will take our morning recess, 15, 20 minutes. We'll see you back here. Ms. McCabe, again if you just want to follow the court officer out.
(Court in recess at 11:00 a.m.)
(Court in session at 11:47 a.m.)
(Defendant is present with counsel.)
(Jury in.)
JUDGE CANNONE: So, jurors, that break was longer than I told you it would be. We were waiting for some records to be printed. So it did take a while. We appreciate your patience. All right. Mr. Jackson, go right ahead.
MR. JACKSON: Thank you, Your Honor.
MR. JACKSON: Ms. McCabe, I want to shift gears to some phone calls that you had with Trooper Michael Proctor back in January of 2022, moving to February and March?
MR. JACKSON: Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Can you tell me, Ms. McCabe, if you recognize those documents that I just handed you?
MS. MCCABE: Yes. This first one looks like a Verizon record of my phone. Q Okay. And what about the second document? A A phone bill, and, yes, more records from my phone.
MR. JACKSON: Okay. I'm going to ask you a couple of questions.
MR. JACKSON: Before I do, I'd like to have both of those documents respectively marked just for identification that I don't anticipate entering.
JUDGE CANNONE: Okay.
(Whereupon Exhibit M, Verizon Records, was marked for identification.)
(Whereupon Exhibit N, Verizon Records, was marked for identification.)
MR. JACKSON: May I continue? Thank you.
MR. JACKSON: Ms. McCabe, you had a number of phone calls with Michael Proctor on January 29 moving into January 30 and onto the 31st, correct?
JUDGE CANNONE: Are you asking her to read the records or --
MR. JACKSON: Not yet. I will in just a second.
JUDGE CANNONE: All right. So turn the records over and see if you can answer the questions.
MR. JACKSON: You had a number of calls with Michael Proctor in the days and hours following the incident, correct?
MS. MCCABE: Yes, I know I had some phone calls.
MR. JACKSON: I'm assuming you don't remember exactly the time and duration of those phone calls as you sit here?
MS. MCCABE: Correct.
MR. JACKSON: Would it refresh your recollection to look at your phone records that you supplied for this time period?
MS. MCCABE: Sure.
MR. JACKSON: There's two different documents, Ms. McCabe. One of them deals -- starts with January 29. Can you grab that document, please?
MS. MCCABE: (Witness complies.) Okay.
MR. JACKSON: You should see some highlights on that document.
MS. MCCABE: Did you make a -- did you receive a phone call from Michael Proctor at about 10:54 a.m. on January 29, a couple of minutes in length?
MR. BRENNAN: I object to the form.
JUDGE CANNONE: Okay. So you asked her if this would refresh her recollection. You need to ask her if this refreshes her recollections.
MR. JACKSON: Sure.
MR. JACKSON: Do you remember, as you sit here, a phone call at 10:54 a.m.?
MS. MCCABE: I remember getting a call. I don't remember the exact time.
MR. JACKSON: Would it refresh your recollection to look at the document that you're holding as to the time of that phone call, the time and date?
MS. MCCABE: I see what the document says. But I just in my head, if you asked me what time did he call you, I don't remember.
MR. JACKSON: Do you have any quarrel with the accuracy of that document?
MS. MCCABE: No, it looks pretty accurate.
MR. JACKSON: Okay.
MS. MCCABE: It looks right. It looks possible, yeah.
MR. JACKSON: All right. As you sit here, do you recall does that refresh your recollection that you received a phone call from Michael Proctor about 10:54 in the morning?
JUDGE CANNONE: Does that refresh your memory now, Ms. McCabe.
MS. MCCABE: I know I did receive a phone call from him, yes.
JUDGE CANNONE: At that time?
MS. MCCABE: I don't know the exact time.
JUDGE CANNONE: All right. So the answer is no.
MR. JACKSON: Was it midmorning?
MS. MCCABE: Yes.
MR. JACKSON: Did you receive another phone call on the 29th around --
JUDGE CANNONE: Without looking. So this is again being asked --
MR. JACKSON: Right. I'm going to go through this each one of these calls, there's not that many, but a few. On the 29th, did you receive a phone call at around 12:49?
MS. MCCABE: I know I received a phone call. Again, don't remember the time.
MR. JACKSON: Would it refresh your recollection to look at the document, the next line down the next phone call from that number?
MS. MCCABE: Yes, I see that there's a call in this record.
MR. JACKSON: Is your recollection refreshed that you did receive that phone call on the 29th from Michael Proctor?
JUDGE CANNONE: Is your recollection refreshed? Do you now remember independently that time?
MS. MCCABE: Not the time. I don't remember the specific times, no, but I do remember that he did call me, yes.
MR. JACKSON: Okay. So there's two calls.
MR. BRENNAN: I can make it easy.
JUDGE CANNONE: Excuse me?
MR. BRENNAN: I only object in form. I don't object to the record.
JUDGE CANNONE: All right.
MR. JACKSON: I'm sorry.
JUDGE CANNONE: So I guess the record is fine, but if you're asking whether she remembers, you're not going to get anywhere, Mr. Jackson. So I'm being told that there's no objection --
MR. JACKSON: Fine.
JUDGE CANNONE: -- to the record, just the question where you're incorporate several things from the record.
MR. JACKSON: Fine.
JUDGE CANNONE: Was that the nature of the objection, Mr. Brennan?
MR. BRENNAN: Yes, I have no objection to the data coming in.
MR. JACKSON: Thank you.
MR. JACKSON: I'm just going to speed things along, and I appreciate Mr. Brennan's is assistance with that. January 29, you see the record indicates a phone call from Michael Proctor at 10:54 a.m.?
MS. MCCABE: Yes.
MR. JACKSON: You also see on that same record a phone call from January 29, 2022 coming in from Michael Proctor at 12:49 p.m., correct?
MS. MCCABE: Yes.
MR. JACKSON: Moving on down to January 30, you see a record -- a call at 9:51 a.m. from you to Michael Proctor, correct?
MS. MCCABE: Yes.
MR. JACKSON: January 30, a minute later, you see a phone call from you to Michael Proctor lasting about 22 minutes, correct?
MS. MCCABE: Yes.
MR. JACKSON: January 30 at approximately 4:45 p.m., you see a call from Michael Proctor to you. The call lasts about ten minutes?
MS. MCCABE: Correct.
MR. JACKSON: Going to onto the next date, January 31. You see a phone call from you to Michael Proctor at 11:51 a.m. just before noon, lasting about four minutes, correct?
MS. MCCABE: Yes.
MR. JACKSON: Take a look at the second document if you will. That covers that document, that timeframe. The second document you should see some highlights, and I'm going to ask you to start where there's a tab on February 14, 2022?
MS. MCCABE: Am I looking at the second one or the --
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: If I may.
MS. MCCABE: Yes.
MR. JACKSON: Can I see the other document?
MS. MCCABE: This one has the February 14th.
MR. JACKSON: There you go. Thank you, Ms. McCabe. Taking a look at that document. And by the way, for the record, which one is that M or N?
MS. MCCABE: This is M.
MR. JACKSON: M as in Mary?
MS. MCCABE: Mary, yes.
MR. JACKSON: Thank you. Do you see a record of a phone call on February 14 at about 3:55 p.m. lasting about 17 minutes between you and Michael Proctor?
MS. MCCABE: Yes.
MR. JACKSON: February 17, at about 5:19 p.m., is there a record of a call between you and Michael Proctor at that time?
MS. MCCABE: Yes.
MR. JACKSON: February 28, about 12:48 ma'am, is there a record of a call between you and Michael Proctor?
MS. MCCABE: Yes.
MR. JACKSON: On the same date, February 28, do you see a call at 4:34 p.m. with you and Michael Proctor?
MS. MCCABE: Yes.
MR. JACKSON: March 1, at 10:16 a.m., do you see a call between -- a record of a call between you and Michael Proctor lasting ten minutes?
MS. MCCABE: Yes.
MR. JACKSON: March 1, you should see two calls, one at 4:51 p.m. and one at 5:00 or 6:00 p.m. Do you see those two calls between you and Michael Proctor?
MS. MCCABE: Yes. One was one minute and the other was two? Those?
MR. JACKSON: Thank you. And staying on that same date. At 5:50 p.m. do you see a call on March 1 between you had Michael Proctor lasting about 12 minutes?
MS. MCCABE: Yes.
MR. JACKSON: And then finally on March 29, 2022, do you see a call at about 3:27 p.m. lasting about four minutes?
MS. MCCABE: I'm sorry. What was the date?
MR. JACKSON: March 29?
MS. MCCABE: Oh, yes.
MR. JACKSON: And that's about a four minute call at 3:27 in the afternoon?
MS. MCCABE: Yes.
MR. JACKSON: And you had in fact -- and that's all I have on those records. Thank you for that, Mrs. McCabe. You had in fact met Michael Proctor in person on January 29, correct?
MS. MCCABE: Yes.
MR. JACKSON: He was actually in your home and personally interviewed you, correct?
MS. MCCABE: Yes.
MR. JACKSON: Not only did you have him in your home, it was for the purpose of a formal interview between the two of you in person; is that right?
MS. MCCABE: Yes.
MR. JACKSON: That was time that Brian Albert was there?
MS. MCCABE: Yes.
MR. JACKSON: In your home as well?
MS. MCCABE: Yes.
MR. JACKSON: And you had at least -- I think you went through about 14 phone calls with Michael Proctor just the next days and weeks going all the way up through February and March. We had just got over those, correct?
MS. MCCABE: Yes, there are calls, but you're right about the number calls, but some of them I don't even know they were answered.
MR. JACKSON: And of course that doesn't -- and that may be true. But you were communicating back, certainly?
MS. MCCABE: Yes.
MR. JACKSON: And in the weeks and months following?
MS. MCCABE: Yes.
MR. JACKSON: And that doesn't include -- those records, just for brevity's sake, those records stop in March, but there are more communications in April, May, June, July, August, correct?
MS. MCCABE: I'm not sure about that. I don't know. I think initially we communicated, but I'm not sure how long it went.
MR. JACKSON: So --
MR. JACKSON: And then I know we started communicating again in the summer of '23 I believe or April of '23.
MR. JACKSON: So you had spoken with Michael Proctor on the phone many times. We've just gone over those records, correct?
MS. MCCABE: Yes.
MR. JACKSON: You met him in person on the 29th?
MS. MCCABE: Yes, that's when he came to interview me at my house, correct.
MR. JACKSON: That was for a formal interview with you, correct?
MS. MCCABE: Yes.
MR. JACKSON: And it was in your house that you met him for that formal interview?
MS. MCCABE: Yes.
MR. JACKSON: And that was probably for some time. It wasn't a two- minute conversation?
MS. MCCABE: No.
MR. JACKSON: Then in September or October of 2023, you were interviewed by Lieutenant Tully, correct?
MS. MCCABE: I have been interviewed by Lieutenant Tully. I don't recall the date.
MR. JACKSON: And you indicated just now that you began picking up conversations with Michael Proctor again in the summer of 2023, correct?
MS. MCCABE: Yes.
MR. JACKSON: So there were many more communication at that time just before the September/October time frame of 2023?
MS. MCCABE: Yes, but that was in regards to something different than this case.
MR. JACKSON: Not the subject matter. You've met him and talked to him more times in the summer of '23, correct?
MS. MCCABE: I never met with him; I just spoke with him.
MR. JACKSON: In that interview Trooper Tully, you were specifically asked your relationship with Michael Proctor when Trooper Tully sat down with you in that I think it was a September or maybe it was an October interview, correct?
MS. MCCABE: I don't remember the specifics of the interview.
MR. JACKSON: He asked you specifically whether or not you had met with Michael Proctor, whether or not you had any sort of relationship with Michael Proctor; is that right?
MS. MCCABE: I'm not sure the specifics of the interview.
MR. JACKSON: Isn't it true that you told Lieutenant Tully that you had, "Never met Trooper Proctor prior to September of 2023?"
MS. MCCABE: No, because Michael Proctor was in my house in January of 2022.
MR. JACKSON: Exactly. The interview with Trooper Tully in that fall of 2023, where did that take place?
MS. MCCABE: I don't know.
MR. JACKSON: Do you recall telling Trooper Tully that you had never met Elizabeth Proctor or Michael Proctor prior to September of 2023?
MS. MCCABE: No.
MR. JACKSON: Would it refresh your recollection if you saw a copy of Lieutenant Tully's report?
MS. MCCABE: I don't need to see the report because I know I told him that I met him on January 29, when he came to my house.
MR. JACKSON: So again, if Trooper Tully wrote that you had never met Trooper Proctor before September of 2023, that would be an error by him, correct?
MR. BRENNAN: I'd object. I'd ask for an instruction.
JUDGE CANNONE: So, again, that is sustained. Ladies and gentlemen, I instructed you on the previous questions regarding the same type of thing, whether or not the witness is lying or not. Disregard the question and move on, Mr. Jackson.
MR. JACKSON: If you had told Trooper Proctor -- I'm sorry -- Trooper Tully, Lieutenant Tully, that you had never met Trooper Proctor before September of 2023, would that have been a truthful or an untruthful statement?
MR. BRENNAN: I object. I'd like to be seen.
JUDGE CANNONE: Okay. Come to sidebar, please.
(Sidebar commences:
MR. BRENNAN: The repeated misuse of documents that are not statements of --
JUDGE CANNONE: Hold on. Wait for --
(Sirens in background.)
MR. BRENNAN: The repeated use of characterizing statements that are not Ms. McCabe's statements, and then positing a credibility issue, suggesting that either police officer or the witness is lying is deliberately improper. It's inflammatory to the jury. A curative instruction is insufficient. It is continuous. I've tried to be patient. I've tried to be less restrictive, but this is going on with every witness over and over again. This is not for impeachment. It's improper. Commenting on the potential credibility of witnesses. And it is improper to try to contrast a statement written by a separate witness and confront the witness on the stand and ask whether or not there's a credibility posturing between the two different people.
MR. JACKSON: There's nothing improper about confronting a witness with a statement that she claims she never made. That's exactly what I'm doing. It's classic cross-examination. This is cross-examination. And, Your Honor, I've got to say, I am not comfortable with the Court's instructions when I'm standing up, when I'm the one who's standing up. This Court has now instructed the jurors twice on my credibility, and I don't appreciate it.
JUDGE CANNONE: It's improper and you're doing it repeatedly. Don’t do it again, Mr. Jackson. Save it for argument.
MR. JACKSON: Your Honor, I understand the difference between argument and cross-examination, but it doesn't appear that the Court is giving me any leeway to aggressively and vigorously cross-examine these witnesses. And we keep coming up to sidebar because Mr. Brennan has an issue with the way I ask questions. They're completely proper. She can say, "I never said that." If it's in that report, that is not true. That's exactly what cross- examination is about. She's saying I'm the one that's being credible. They're not being credible. And the reason I'm doing it repeatedly is because it's in every single police report. This witness has basically said at this point every time she's interviewed, when she doesn't like the fact that she's being impeached, the officer got it wrong. These jurors are entitled to hear that. That's her --
JUDGE CANNONE: So they'll hear it when they bring the officer in to show it, otherwise it's not admissible, and I'm telling you to stop doing it. Let's go back.
end of sidebar.)
JUDGE CANNONE: Next question.
MR. JACKSON: May I?
MR. JACKSON: Did Trooper Tully -- I'm sorry. Did you tell Trooper Tully, quote, You had never met Elizabeth Proctor or Michael Proctor prior to September 2023, end quote?
MS. MCCABE: I had never met Elizabeth Proctor prior.
MR. JACKSON: That's not my question, Ms. McCabe.
MS. MCCABE: Okay.
MR. JACKSON: My question is did you tell Trooper Tully, Lieutenant Tully, that quote?
MS. MCCABE: If I can break that quote up because it's two different parts?
MR. JACKSON: No, you can't.
JUDGE CANNONE: So this has been asked and answered. Move on, Mr. Jackson.
MR. JACKSON: Do you deny, as you sit here, telling Lieutenant Tully that quote that I just read?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained. Move along. The question's been answered.
MR. JACKSON: Let's talk for a second about your phone calls to John O'Keefe on January 29, 2022. I'd like to go through those calls with you briefly, if I could.
MR. JACKSON: Your Honor, this has previously been marked Exhibit 26. Mr. Brennan has a copy. If I may approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I can take that back. Thank you.
MR. JACKSON: You indicated on direct examination, and earlier on cross-examination, that you had multiple phone calls to Mr. O'Keefe in the early morning hours of January 29, 2022, correct?
MS. MCCABE: Correct.
MR. JACKSON: Those phone calls ranged from about 12:14 a.m. until about 12:50 a.m., correct?
MS. MCCABE: There was a call at 12:14 and then at 12:18.
MR. JACKSON: I'm sorry. I'm --
MS. MCCABE: No, I apologize.
MR. JACKSON: That's okay. The calls were between 12:14 all the way about 12:50, correct?
MS. MCCABE: Did you say 15?
MR. JACKSON: Fifty, five zero.
MS. MCCABE: Oh, I'm sorry. I apologize. Yes.
MR. JACKSON: You called John O'Keefe at 12:14 and 31 seconds lasting about 49 seconds, and that call was answered, correct?
MS. MCCABE: Yes.
MR. JACKSON: And you see that reflected in Exhibit 26; is that right?
MS. MCCABE: Yes.
MR. JACKSON: Going in reverse chronological order on this exhibit. You also see a call at 12:18 and 47 seconds wherein you call -- I'm sorry. John O'Keefe calls your phone lasting about 36 seconds; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You know that that call was answered, even though it says, "unknown," in the document, correct?
MS. MCCABE: It does say unknown, yes.
MR. JACKSON: One, two, three, four, fifth column over? That's where it says unknown?
MS. MCCABE: Yes.
MR. JACKSON: But it also indicates that that call lasted 36 seconds, so you know it was answered?
MS. MCCABE: I don't know from this record if it was answered, but I know from my memory that I spoke to him a second time, yes.
MR. JACKSON: You also made a call -- moving up to the page before this, starting at the bottom of the page, at 12:29 and forty-four seconds, there was a call from you to John O'Keefe's phone lasting seven seconds, correct?
MS. MCCABE: That's what it says.
MR. JACKSON: And the record indicates that it was an answered phone call, correct?
MS. MCCABE: According to the record, it was answered, but I never spoke to him.
MR. JACKSON: You deny speaking to John O'Keefe at 12:29 and 44 seconds?
MS. MCCABE: Yes, I never spoke to him after 12:18.
MR. JACKSON: Okay. Moving up. 12:41 and 10 seconds, there was a call from you to John O'Keefe's phone indicating that that was missed. Do you see where it says missed?
MS. MCCABE: I do.
MR. JACKSON: 12:41 and 59 seconds, there was another call from your phone to John's phone, and that was also indicated as missed, correct?
MS. MCCABE: Correct.
MR. JACKSON: 12:43, 19 seconds. You call John O'Keefe. That was a missed call?
MS. MCCABE: Correct.
MR. JACKSON: 12:46 and 16 seconds, you call John O'Keefe's phone, and that was a missed call?
MS. MCCABE: Correct.
MR. JACKSON: 12:47 and 52 seconds, you called John O'Keefe's phone and that was a missed call?
MS. MCCABE: I'm sorry. Which one was that?
MR. JACKSON: 12:47 and 52 seconds.
MS. MCCABE: Yes.
MR. JACKSON: At 12:15 and 37 seconds, you call John O'Keefe's phone that was a missed call as well?
MS. MCCABE: Yes.
MR. JACKSON: Ms. McCabe, these are seven calls that you indicate you made to John O'Keefe's phone, and that were missed; is that right?
MS. MCCABE: According to this record, yes. There were calls that were missed.
MR. JACKSON: And that comports with your memory, correct? You indicated that you had called him multiple times that morning and there were missed calls, right?
MS. MCCABE: I called him, but I also think that some of the calls I might have done inadvertently.
MR. JACKSON: Well, we're going to get to that in a second. My question is that comports with your memory that there were several calls, according to the records, there were several calls made to John O'Keefe's phone, including two calls that you say you spoke to him - 12:14 and 12:18?
MS. MCCABE: I spoke to him at 12:14 and 12:18, yes.
MR. JACKSON: But you indicate every single call after that was missed, and you denied making those calls?
MS. MCCABE: I'm not denying it. I just don't remember.
MR. JACKSON: You previously give an explanation for what those calls were, these seven calls that were missed between about 12:29 and about 12:50. That's about 19 minutes, we'll agree, correct?
MS. MCCABE: Yes.
MR. JACKSON: If you divide nineteen by seven, that's every two and a half minutes or 2.7 minutes your phone is calling John O'Keefe's phone, correct?
MS. MCCABE: Correct.
MR. JACKSON: You previously explained what you attribute to those phone calls; is that right?
MS. MCCABE: Yes.
MR. JACKSON: What's your explanation?
MS. MCCABE: I think I was going back and forth to the door. I was texting him. I think I put my phone in my pocket. I think I inadvertently maybe I called him.
MR. JACKSON: What did you call it at the last hearing?
MS. MCCABE: I believe I called it a butt dial.
MR. JACKSON: And it's not just one butt dial, correct?
MS. MCCABE: There could be multiple, yes.
MR. JACKSON: Seven butt dials in the course of nineteen minutes, less than twenty minutes, correct?
MS. MCCABE: That evening, I wasn't paying attention to butt dials or calls. I was going back and forth, listening to music, being with family. So if I inadvertently called his phone, I did.
MR. JACKSON: Not inadvertently called him once, seven times, correct, according to you?
MS. MCCABE: According to the record.
MR. JACKSON: And we only know about these calls because you're looking at an extraction of John O'Keefe's phone, correct?
MS. MCCABE: Correct. But I also turned over my phone so you could've gotten all of that off of my phone as well.
MR. JACKSON: And you're well aware that an extraction was done on your phone and not one of those butt dial appears on your phone extraction, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Are you aware of that?
MS. MCCABE: I am not aware of that.
JUDGE CANNONE: Next question.
MR. JACKSON: Once you're confronted with that at the last hearing, a year ago, whether or not those phone calls actually exist on your phone logs?
MR. BRENNAN: Objection.
JUDGE CANNONE: Do you remember that?
MS. MCCABE: I remember you asking previously, yes.
MR. JACKSON: When you dial somebody by mistake, it requires several steps, doesn't it?
MS. MCCABE: I'm not sure. A lot of times, I just put my phone down and then the next thing you know. I think it's very common to do butt dials.
MR. JACKSON: So you have an iPhone; is that right? Or had an iPhone?
MS. MCCABE: I do, yes.
MR. JACKSON: And that iPhone required a biometric or a passcode to get into -- to even open the phone. Mine's not open right now, right?
MS. MCCABE: It's not open, correct.
MR. JACKSON: And it requires -- your phone required some sort of a biometric interaction with the phone, otherwise known as face ID, or you put in a code, correct?
MS. MCCABE: Yes, or I could have been texting.
MR. JACKSON: Okay.
MS. MCCABE: And then after I texted, the phone was open and I could have accidentally called John. That happens to me all the time.
MR. JACKSON: It also requires you to open the phone app, correct? For instance, if you're texting, you're in the text app; is that right?
MS. MCCABE: Actually, I'd have to sit and look at it.
MR. JACKSON: Well, how often do you make phone calls, Ms. McCabe? This is easy.
MS. MCCABE: Every day.
MR. JACKSON: Every day.
MS. MCCABE: Yeah.
MR. JACKSON: Hundreds of times a day, right?
MS. MCCABE: Not hundreds.
MR. JACKSON: Dozens of times a day?
MS. MCCABE: Yeah.
MR. JACKSON: You have to open the phone app to make a phone call. You can't call somebody from a texting app, right; is that right?
MS. MCCABE: I'm not sure. I don't know what to tell you.
MR. JACKSON: There's a list of apps at the bottom of phone. You know what message is to phone, right?
MS. MCCABE: Mm-hmm.
MR. JACKSON: Is that a yes?
MS. MCCABE: Yes, and may be --
MR. JACKSON: And you answered my question --
MS. MCCABE: -- I hit the last thing, the last call --
MR. BRENNAN: Objection. A -- since I had talked to John --
MR. JACKSON: Your Honor, at this point I ask the Court to instruct the witness to answer my question.
JUDGE CANNONE: I believe she is. Go ahead and finish.
MR. JACKSON: Your Honor, may we approach?
JUDGE CANNONE: Okay.
(Sidebar commences:
JUDGE CANNONE: Is Ms. Read coming?
MR. YANNETTI: She's right here.
JUDGE CANNONE: Okay. Go ahead.
MR. JACKSON: This is an ongoing issue, and one that I finally have to bring to the Court's attention. That is not an answer to the question, and the Court --
JUDGE CANNONE: You asked her right, and she's telling you that they're not --
MR. JACKSON: Your Honor, I know what I asked her.
JUDGE CANNONE: -- letting her answer. She's giving you an explanation.
MR. JACKSON: I know what I asked her. I asked her yes or no, and she said yes. And then she says, but and goes onto this long, lengthy explanation, and you've done this several times where you've said, "She's answering your question." She has already answered my question. When I object and ask the Court to stop her, normally what happens is the Court says to the witness, "If you can answer it yes or no, answer it yes or no. Ms. McCabe, you've answered the question. Ask your next question."
JUDGE CANNONE: So --
MR. JACKSON: You've consistently said, "Mr. Jackson, she's answering your question," and let her go on a diatribe.
JUDGE CANNONE: So I have stopped her or other witnesses on occasion. The court reporter needs to get an answer. You asked -- you said right. You don't say yes or no, you said right, and she was telling you you're not right. Tighten the questions, Mr. Jackson.
MR. JACKSON: Oh, this isn't my fault. You can't put this on me. I know what I'm doing. I know how to ask a question. I know how to ask it loose, and I know how to ask it tight. You can't put this on me, Judge. I asked her, you open an app with your -- it's a different app than the messaging app, right?
JUDGE CANNONE: And you're showing her the phone --
MR. JACKSON: And she said yes, but --
JUDGE CANNONE: Excuse me. And you're doing a demonstration with your phone, holding the phone up, going -- pointing at your phone. She answered the question. Ask a tighter question and if she's non-responsive, you can move to strike the answer. It's very rare that a lawyer has to object to his own question and answer. So keep it tighter.
MR. JACKSON: This witness is very rare, and the Court knows that. This is not -- again, this is another opportunity for me to take a shot at me. It's very rare for a lawyer to have to object to his own questions? Your Honor, you seem to take shots at me that you don't take at anyone else.
JUDGE CANNONE: Well, if you thought it was a shot, I apologize. Let's just go and ask the witness questions --
MR. BRENNAN: Your Honor, I'll put on the record I objected because I believe that Mr. Jackson is cutting the witness off during her answer, and she should have the entitlement to finish and explain, that's why I'm objecting.
JUDGE CANNONE: And that's when I let her go is when she's in the middle of an answer. You can redirect her before she answers, but she's answering your question and we need to have a record, and you've made your objection known.
end of sidebar.)
MR. JACKSON: Ms. McCabe -- I'm sorry.
JUDGE CANNONE: So, Ms. McCabe, answer only the question that's being asked, okay?
MR. JACKSON: Ms. McCabe, you're aware that when you're in the messaging app, you have to do something else volitionally to open the phone app, correct?
MS. MCCABE: Correct.
MR. JACKSON: You have to test the phone; is that right?
MS. MCCABE: Yes.
MR. JACKSON: That would open up a second app, correct?
MS. MCCABE: Correct.
MR. JACKSON: Then once that phone app is open, then you have to choose a person to call, correct?
MS. MCCABE: Yes, sometimes the last dialed.
MR. JACKSON: Right. And if that happens to be the last dialed, you can scroll through, pick a person, make one tap and that calls the person, that initiates the call, correct?
MS. MCCABE: That is one way, yes.
MR. JACKSON: But if you get out of the app -- I'm sorry. If you close your phone, hit the lock button after a text message, none of that can happen without you having to open the phone and engage the phone, additionally, correct?
MS. MCCABE: If you had forgotten to lock it, yes.
MR. JACKSON: Right. So you indicated that these are all missed calls; is that right?
MS. MCCABE: That's what the records show, yes.
MR. JACKSON: In addition to a missed call -- you had missed calls before. You've both received missed call and you've made calls that were missed; is that right?
MS. MCCABE: Yes.
MR. JACKSON: When you make a call that's missed, it generally goes to voicemail, does it not?
MS. MCCABE: It does, yes.
MR. JACKSON: So then you have to do something additional with that call, push the end button, correct?
MS. MCCABE: Correct.
MR. JACKSON: Otherwise, voicemails just go on forever. They actually go on for four minutes, right?
MS. MCCABE: I don't know how long voicemails go for.
MR. JACKSON: So if you had missed calls, seven missed calls, that's at least fourteen interactions -- double it because you got to make the call, then you got to end the call. Fourteen interactions with your phone for a single missed call -- I'm sorry for seven missed calls?
MS. MCCABE: Could be, yes.
MR. JACKSON: And your testimony is you don't remember making a single one of those calls to John O'Keefe between 12:29 and 12:50, correct? A I do not remember making those calls, no.
MR. JACKSON: As you sit here, do you deny making those calls between 12:29 and 12:50 to John O'Keefe?
MS. MCCABE: Oh, I'm not denying that, no.
MR. JACKSON: I would like to ask you a few questions about January 29, a little further on in the morning after you got home from 34 Fairview. Approximately what time did you get home?
MS. MCCABE: I'm not sure. Maybe around 11:30, 12:00. I'm not sure.
MR. JACKSON: 11:30 or 12:00?
MS. MCCABE: It could be 11:00. Are you talking about -- I'm confused. are you talking about?
MR. JACKSON: Let me rephrase the question. On the night of -- the early morning hours of January 29, 2022, when you left Fairview --
MS. MCCABE: Oh, I'm sorry.
MR. JACKSON: -- what time did you get today?
MS. MCCABE: It was after 2:00, I believe. I'm not positive.
MR. JACKSON: You went upstairs; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You began to engage with your phone at that time?
MS. MCCABE: Yes.
MR. JACKSON: What application did you open on your phone once you got upstairs?
MS. MCCABE: It could have been Hockomock Sports.
MR. JACKSON: I'm sorry. I'm backing up foundationally. What application was on the phone? Was it Safari?
MS. MCCABE: Oh, okay, yes, I think, yes.
MR. JACKSON: You use Safari as your browser?
MS. MCCABE: I'm not sure what I used.
MR. JACKSON: You opened up the search engine as well within that browser, did you not?
MS. MCCABE: I just know I googled Hockomock Sports I believe. I'm not sure what app I opened it or how I did my login.
MR. JACKSON: So Google is a search engine. You use Google?
MS. MCCABE: Possibly. That's just an expression. I'm not -- if your could show me my record, I'm not sure what app I opened.
MR. JACKSON: Well, Ms. McCabe, you've seen this record many, many times about that search early in the morning hours, correct? You know that it was a Google search?
MS. MCCABE: It was a Google search.
MR. JACKSON: Okay. So it was a Google search using the Safari app?
MS. MCCABE: Okay.
MR. JACKSON: You indicated that you were Google searching Hockomock and something about Ozone?
MS. MCCABE: Yes.
MR. JACKSON: Ozone Sports or Ozone Basketball?
MS. MCCABE: Yes.
MR. JACKSON: What time was it that you did that Google search?
MS. MCCABE: It was home, but I don't have an exact time.
MR. JACKSON: About 2:27 a.m., correct?
MS. MCCABE: I'd have to look at record. I don't recall off the top of my head.
MR. JACKSON: You certainly recall that timeframe, don't you?
MS. MCCABE: I know I was home and I googled that, but I don't remember the exact time.
MR. JACKSON: You do recognize 2:27 a.m.?
MS. MCCABE: I do recognize it, but it's not from me remembering it from that night, specifically. It's from me learning afterwards.
MR. JACKSON: And what you learned afterwards was it was a Google search at 2:27 a.m., right? I mean that's a layup to use a basketball term, right?
MS. MCCABE: There's a record I think of one.
MR. JACKSON: Right. The record is of a Google search at 2:27 a.m. on your phone; is that right?
MS. MCCABE: I'm not a phone expert, so I don't know. I can't read ...
MR. JACKSON: You're well aware -- you don't have to be a phone expert to know that there was a Google search on your phone recovered at 2:27 in the morning. You know that, you've been told that, you've seen it, you've been asked about it dozens of times, haven't you?
MS. MCCABE: I have been asked about it dozen of times, yes.
MR. JACKSON: So let's set the foundation. There was a Google search on your phone at 2:27 a.m., correct?
MS. MCCABE: Which Google search are you referring to?
MR. JACKSON: It doesn't matter, Ms. McCabe.
MS. MCCABE: Well, I know I did Ozone, and I did Hockomock Sports.
MR. JACKSON: And I didn't ask you that --
MS. MCCABE: Those are the only two things that I Googled.
MR. JACKSON: I didn't ask you what you Googled. I haven't gotten there yet. We're going to get there. I've asked you was there a Google search at 2:27 a.m. on your phone?
MS. MCCABE: You want to show me your report.
MR. JACKSON: Sure. You don't remember -- as you sit here, you don't remember that?
MS. MCCABE: I don't.
MR. JACKSON: You have no record, you have nothing in your mind about a Google search at 2:27 a.m. That's what you're testify to in front of this jury right now?
MS. MCCABE: Are you asking me if I made a Google search at 2:27 --
MR. JACKSON: Yes.
MS. MCCABE: I don't know what time I was searching for Hockomock Sports and Ozone. I have no idea what time that was.
MR. JACKSON: You're well aware that your records have been pulled, correct?
MS. MCCABE: Yes.
MR. JACKSON: And you've been confronted with this records many times, haven't you? You've been asked --
MS. MCCABE: I've been asked by you, yes.
MR. JACKSON: And by others, right?
MS. MCCABE: Yes.
MR. JACKSON: I mean, the police asked you about it. You've been interviewed about it?
MS. MCCABE: I've been asked by you.
MR. JACKSON: And Mr. Lally?
MS. MCCABE: Yeah, Mr. Lally asked about it, yes.
MR. JACKSON: And every time you're asked, it's about a Google search at 2:27 a.m. That's all I'm asking.
MS. MCCABE: It is, but it's not one that I remember doing or making or did. It's not one that I did. It's just one that is in a record that was misread.
MR. JACKSON: Are you denying that you made a Google search at 2:27 a.m.?
MS. MCCABE: If you could show me this Google search, I'd appreciate it.
MR. JACKSON: May I moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Your Honor, we need a quick minute to find the record that I did not think we were going to have to find. Can we take a brief recess, about five minutes?
JUDGE CANNONE: I'll see counsel at sidebar. If Ms. Little wants to keep looking while you come to sidebar.
(Sidebar commences:
MR. JACKSON: I'd have to pull a Cellebrite report that I did not think I was going to -- I did not think in a million years she was going to literally do this.
JUDGE CANNONE: How much longer do you have with her?
MR. JACKSON: Probably -- this is the second to the last subject matter. I mean, I could get before 1:00 if she would just answer a question. It's tedious. If she wants to do it this way, I don't mind.
JUDGE CANNONE: So if it's part of what has been displayed, right, is it something we can put a hand on quickly so we don't have to send the jury back.
MS. LITTLE: We have it cued up electronically --
JUDGE CANNONE: Any objection if we put it up?
MR. BRENNAN: No.
MR. JACKSON: You got it?
MS. LITTLE: Yep.
JUDGE CANNONE: We need to at some point say where you got that -- isn't -- and it's in evidence, right?
MR. JACKSON: It's in evidence.
JUDGE CANNONE: All right. So we'll mark it later.
MR. BRENNAN: Yep.
end of sidebar.)
JUDGE CANNONE: Jurors, we're trying not to have you take a recess, so the lawyers are just going to get something done fairly quickly so that we can continue up until the luncheon recess.
MR. JACKSON: Your Honor, may I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
MR. JACKSON: Ms. McCabe, I don't have a paper copy, but I'm going to ask you to take a look at something that will be displayed on the screen and ask you a couple questions about that. Can you zoom in?
MR. BRENNAN: I object to the way it's presented here.
JUDGE CANNONE: Okay. Take it down. That's not how it appears. We need to get rid of a column.
MR. JACKSON: That's exactly how it appears, Your Honor.
JUDGE CANNONE: I'll see counsel at sidebar.
(Sidebar commences:
JUDGE CANNONE: Does what's in evidence have --
MR. BRENNAN: No.
JUDGE CANNONE: -- the deleted with bright red and the bright green column?
MR. BRENNAN: I don't recall that. I would have to look at the record. I would be hopeful the witness would answer this question, but she's not a Cellebrite expert. She's not interpreting the records. That's not --
JUDGE CANNONE: So just lead her with the "hos long to die in cold".
MR. JACKSON: Your Honor, let me do my examination.
JUDGE CANNONE: Okay.
MR. JACKSON: I have been leading her. She won't answer the question.
JUDGE CANNONE: You have asked -- and I'm not criticizing you. I know you think I am. You've asked open-ended questions about this, that's why she's giving you open- ended. Just go -- if this in evidence, just say, "You googled 'hos long to die in cold'."
MR. JACKSON: I have --
JUDGE CANNONE: Mr. Lally just provided that?
MR. YANNETTI: No, the court officer did.
JUDGE CANNONE: Great.
MR. JACKSON: Yeah, and this is part of the record, by the way.
JUDGE CANNONE: Okay. It has a yes in there.
MR. BRENNAN: She's not a Cellebrite expert.
JUDGE CANNONE: Oh, it doesn't --
MR. BRENNAN: This has not been interpreted -- she can look at this, but that is not something that she should be examining on.
JUDGE CANNONE: Is it in evidence?
MR. JACKSON: I don't know. I'm not saying it's not.
JUDGE CANNONE: So a court officer gave it to you. So is it in --
MR. YANNETTI: He had to have gotten it from our team.
MR. BRENNAN: Is it in evidence?
MR. ALESSI: It's in through Mr. Whiffin.
JUDGE CANNONE: Okay. All right. So if it's in through Mr. Whiffin, you can go ahead and put it up.
MR. JACKSON: Okay.
JUDGE CANNONE: Hold on.
MR. ALESSI: We're double-checking. It's not in evidence.
MR. BRENNAN: Oh, boy.
MR. ALESSI: We record it was. We had somebody to check. They rechecked --
COURT REPORTER: Counsel.
JUDGE CANNONE: Okay. You need to be here.
MR. ALESSI: Yeah, we just went. We were told it was in evidence. We wanted to make sure. We had somebody check. It is -- it's not in evidence, correct? It's not in through Mr. Whiffin.
JUDGE CANNONE: All right. So that part of that cannot get up on the screen. It's already been up on the screen. I'd prefer you just show here the piece of paper.
MR. JACKSON: Take the column down?
JUDGE CANNONE: It's already been up. I'd prefer it not go back up on the board.
end of sidebar.)
JUDGE CANNONE: Go ahead.
MR. JACKSON: Thank you.
MR. JACKSON: We found the paper.
MR. JACKSON: Thank you for the patience, Your Honor, and Ms. McCabe. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: You indicated you wanted to see a record, Ms. McCabe. Did you see a record that indicated a Google search, not what the content of the Google search is, but there was a Google search?
MS. MCCABE: I just saw a Cellebrite record, yes.
MR. JACKSON: And did you see the time of that Google search?
MS. MCCABE: On that record, yes.
MR. JACKSON: Is it 2:27 a.m., correct?
MS. MCCABE: Yes.
MR. JACKSON: Ultimately, you will agree that there was a Google search done, and now I'm going to ask you about the content of, "hos long to die in cold," correct?
MS. MCCABE: That was done in the morning at the request of Ms. Read.
MR. JACKSON: Ms. McCabe, I didn't ask you that. I asked you a yes or no question. Did you understand my question?
MS. MCCABE: Could you repeat it, please?
MR. JACKSON: Sure. I'd be happy to.
MS. MCCABE: Thank you.
MR. JACKSON: Did that record indicate that there was a search at some point done at some point for "hos long to die in cold"?
MR. BRENNAN: I object to with her reading the record.
JUDGE CANNONE: So was there a search on that at some point?
MS. MCCABE: On that paper, was there a search that said that? Is that your question?
MR. JACKSON: Let's start with that. Was there?
MS. MCCABE: Yeah, there was.
MR. JACKSON: Okay. Now let me ask you a different question. You Google searched the phrase, "hos long to die in cold," yes or no?
MS. MCCABE: Yes.
MR. JACKSON: On January 29, correct?
MS. MCCABE: Yes.
MR. JACKSON: So you agree that you were on Google, correct?
MS. MCCABE: Yes.
MR. JACKSON: You would agree that there was a search done at 2:27 a.m., correct?
MS. MCCABE: I don't recall doing a search at 2:27. The paper says it. I don't you.
MR. JACKSON: Okay. And you also agree that at some point that morning, you plugged into that phone, "hos long to die in cold," is that right?
MS. MCCABE: Yes. After we found John O'Keefe.
MR. JACKSON: Now, you claim that that was at 6:23 and 6:24 in the morning, two iterations of how long to die in the cold? "Hos long to die in cold?" "How long T-I die in C-I-K-D," correct?
MS. MCCABE: I'm not claiming it. It's the truth. It's what happened.
MR. JACKSON: You're testifying to that?
MS. MCCABE: Yes, I am.
MR. JACKSON: You also testified that at the time you Google searched those phrases, it was Karen Read screaming and yelling at you, shaking you, to Google hypothermia, correct?
MS. MCCABE: She was pulling on my sleeve, yes.
MR. JACKSON: Is that a yes or no?
MS. MCCABE: Yes.
MR. JACKSON: You discussed this Google search and the issue of the hypothermia with Kerry Roberts, correct?
MS. MCCABE: I told her in the days following --
MR. JACKSON: Yes or no, you discussed it or no?
MS. MCCABE: Yes.
MR. JACKSON: You discussed it in the days following January 29, correct? A Yes.
MR. JACKSON: You discussed it before her testimony at the grand jury, correct?
MS. MCCABE: We discussed it after. We both -- we don't talk about what we're going to say before testifying or anything like that.
MR. JACKSON: So in the three months between this incident and the testimony by both you and Ms. Roberts, you two did not discuss this hypothermia issue?
MS. MCCABE: It wasn't an issue. It was just something she said, but we don't discuss it every day. There's no need to.
MR. JACKSON: I didn't ask you if you discussed it every day. I asked you had you ever discussed it?
MS. MCCABE: Originally, yes, we did discuss it and the --
MR. JACKSON: And that would have been before either one of you testified at the grand jury, correct?
MS. MCCABE: Yes.
MR. JACKSON: And we know that you were with her during her -- sorry -- just before her testimony at the grand jury; is that right?
MS. MCCABE: Yes.
MR. JACKSON: And you're certainly aware that at the grand jury that in prior testimony, Kerry Roberts corroborated your statement that Karen Read demanded to Google hypothermia?
MR. BRENNAN: Objection.
JUDGE CANNONE: Ask it differently, Mr. Jackson.
MR. JACKSON: Are you aware that Kerry Roberts -- let me ask it a different way. Have you and Kerry Roberts ever discussed the fact that she corroborated your statement that Karen Read demanded that you Google hypothermia? She never told you that?
MS. MCCABE: No.
MR. JACKSON: Did you ever ask her that?
MS. MCCABE: No.
MR. JACKSON: Did you two discuss your statement that Karen Read was the one that demanded that search?
MS. MCCABE: Karen Read did ask me to do that search, yes.
MR. JACKSON: Okay. That's not what I asked you. Did you and Kerry Roberts discuss that?
MS. MCCABE: Yes, we talked about that.
MR. JACKSON: Are you aware that last week Kerry Roberts denied hearing that statement?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Have you been told, have you been updated that last week Kerry Roberts denied ever having heard that statement?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May we approach?
JUDGE CANNONE: Yes. All right. Jurors, feel free to stand up and stretch.
(Sidebar commences:
JUDGE CANNONE: All right. There's a sequestration order, and she said that she is not aware of this, so let's move on.
MR. JACKSON: She didn't say that. You won't let her answer.
JUDGE CANNONE: Well, she can't answer it. What's your objection?
MR. JACKSON: Yes, she can answer it.
MR. BRENNAN: It's twofold. One, Attorney Jackson is characterizing past testimony inaccurately, and that characterization leaves the impression with the jury that's what Kerry Roberts said. That is not the testimony. Unless it's in a transcript, that is not my memory of the testimony. And secondly, the question is whether or not they violated sequestration. If that's the question, then it can be asked. But mischaracterizing a conclusion to somebody's testimony that she denied it and then confronting a different witness with what Kerry Roberts did at a different testimony is improper.
MR. JACKSON: First --
JUDGE CANNONE: I was concerned about the sequestration. I know she has a lawyer. That was my concern.
MR. JACKSON: Well, I --
JUDGE CANNONE: Do you care about that?
MR. BRENNAN: The sequestration order?
JUDGE CANNONE: The fact that she's being questioned as to whether or not she violated a sequestration order without being able to consult counsel.
JUDGE CANNONE: I mean, I would have no reason -- I mean, I would have no reason to be concerned. I've never spoke to her. If she answers something that's incriminating, I wouldn't expect it, but I don't know.
MR. JACKSON: First of all, I didn't mischaracterize what Kerry Roberts said last week. Mr. Brennan was here. I was here. She absolutely --
JUDGE CANNONE: I'm concerned on the sequestration part, that's all.
MR. JACKSON: I want to make sure the record is clear that I didn't mischaracterize anything. On that witness stand --
JUDGE CANNONE: That's fine.
MR. JACKSON: -- Kerry Roberts denied having heard it. She absolutely denied having heard it.
JUDGE CANNONE: Yeah, I'm not concerned about any mischaracterizations; it's not an issue.
MR. JACKSON: I want an answer from this witness whether or not she's aware that Kerry Roberts has now denied that.
JUDGE CANNONE: That's it. Ask her just that.
MR. BRENNAN: I was not implying that Kerry Roberts didn't deny hearing it. Kerry Roberts did deny hearing it. The way I heard your question was different, but as far as Kerry Roberts, she did say she didn't hear that.
JUDGE CANNONE: Just ask her if she's now aware that Kerry Roberts hearing it.
MR. JACKSON: Okay.
end of sidebar.)
JUDGE CANNONE: Go just one question on this. Just one question on this, please, Mr. Jackson.
MR. JACKSON: Have you become aware from any source that last week Kerry Roberts denied having heard the statement that was attributable to my client? Are you aware of that?
MS. MCCABE: No.
MR. JACKSON: You've seen -- you reviewed the video from the dash–cam of the scene, correct?
MS. MCCABE: I've seen it, yes.
MR. JACKSON: You're aware that there is no video showing my client demanding a Google search anywhere in this case, correct?
MS. MCCABE: I'm not sure what cameras were where.
MR. JACKSON: You're aware that there's no audio of my client demanding a Google search, correct?
MS. MCCABE: Correct.
MR. JACKSON: You're unaware of any witness, any witness who can corroborate your statement that my client demanded a Google search, any witness at all?
MS. MCCABE: It was just the two of us. She had sent Kerry off.
MR. JACKSON: So, of course, Kerry Roberts is not such a corroborating witness, is that right, at least you understand that.
MS. MCCABE: Can you rephrase the question, please?
MR. JACKSON: Kerry Roberts is not a corroborating witness for you, you understand that? You just said that.
MS. MCCABE: Yes, Kerry I don't believe heard it. That's what I thought.
MR. JACKSON: So it's your word and your word only, Ms. McCabe, that my client demanded a Google search; is that right?
MS. MCCABE: Yes.
MR. JACKSON: Ms. McCabe, you were with Kerry Roberts just before her grand jury testimony; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You had been with her to create a timeline of a version of events that occurred, correct?
MS. MCCABE: I wouldn't say a version of events. We each put down what we remember.
MR. JACKSON: She saw what you put down. You saw what she put down?
MS. MCCABE: Yes.
MR. JACKSON: And you compared and contrasted those with each other to create that timeline, correct?
MS. MCCABE: No, we didn't compare and contrast. I said she called me, she said this, and then Kerry -- and someone was writing it down for us.
MR. JACKSON: That would be your sister, who?
MS. MCCABE: It was my sister, yes.
MR. JACKSON: Which sister?
MS. MCCABE: My sister Denise.
MR. JACKSON: What's her last name?
MS. MCCABE: Galvin.
MR. JACKSON: Is she here?
MS. MCCABE: She is here, yes.
MR. JACKSON: Where is she?
MS. MCCABE: She's sitting over there.
MR. JACKSON: Can you point to her and describe what she's wearing?
MS. MCCABE: Sure. She's over there in the back with the striped shirt on.
MR. JACKSON: Between the gentleman in the purple and the gentlemen in the black?
MS. MCCABE: Yes.
MR. JACKSON: So she witnessed this timeline being prepared, correct?
MS. MCCABE: She wrote the timeline, yes.
MR. JACKSON: And then you've spoken to Ms. Roberts several times about this case?
MS. MCCABE: Yes.
MR. JACKSON: And about your perceptions of this case, correct?
MS. MCCABE: We talk about what happened and the aftermath of this case. We don't talk about the specific details as much as we talk about the aftermath of everything.
MR. JACKSON: Ms. McCabe, the fact is you instructed Kerry Roberts to say that she heard that Google hypothermia statement from my client before she testified at the grand jury, didn't you?
MS. MCCABE: No, absolutely not. I never instructed her to do anything.
MR. JACKSON: You wanted some witness to backup your story about this Google search, correct?
MS. MCCABE: No, absolutely not.
MR. JACKSON: Ms. McCabe --
MS. MCCABE: It was said. Karen said it. It's that simple.
MR. JACKSON: So you're the only person saying that, correct?
MS. MCCABE: Yes, and I stand by that 110 percent.
MR. JACKSON: And the reason that you wanted another witness to back up that statement is because you knew that that Google search for "hos long to die in cold" points a very uncomfortable finger right toward you, correct?
MS. MCCABE: I never did that search at 2:27. I never needed to instruct somebody. It's, no, I'm sorry.
MR. JACKSON: You are -- there's that apology again. Has someone told you that you need to apologize when you say -- when there's an uncomfortable question that you don't want to answer?
MS. MCCABE: No.
MR. JACKSON: Have you discussed this with anybody?
MS. MCCABE: No, and that's not an uncomfortable question. I'm trying to answer it.
MR. JACKSON: How many times did you say I apologize yesterday on cross-examination?
MS. MCCABE: I didn't count.
MR. JACKSON: Probably more than 15, right?
MS. MCCABE: I have no idea. I'm just trying to answer the questions and be truthful as I can.
MR. JACKSON: And you're aware that Cellebrite, the Cellebrite extraction that we've done on your phone determined that of the three searches, 2:27 a.m., 6:23 a.m., and 6:24 a.m., only one of them was recorded as deleted, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Have you ever been confronted of having deleted a Google search off your phone?
MS. MCCABE: Yes.
MR. JACKSON: Have you ever been asked that?
MS. MCCABE: Yes, by you.
MR. JACKSON: Do you deny that you deleted a Google search off your phone? A I never deleted a Google search off my phone.
MR. JACKSON: So you deny that?
MS. MCCABE: I deny it, yes.
MR. JACKSON: That you ever deleted the Google search.
MS. MCCABE: Yes. I never made the search.
MR. JACKSON: I'd like to move back to time of about 6:03 in the morning, Ms. McCabe, when you, along with Kerry Roberts and Ms. Read approached 34 Fairview. This is Exhibit 4 that's been previously entered into evidence. I think you've seen part of this exhibit. Do you recall -- before we get to the exhibit, do you recall my client when the first officer on the scene -- do you know his name, by the way?
MS. MCCABE: I believe it was Officer Saraf.
MR. JACKSON: When Officer Saraf approached, he asked the question, "What happened?" Something like that. An open-ended question. Do you remember that?
MS. MCCABE: I don't remember what he specifically said.
MR. JACKSON: Do you remember my client, a few seconds later, saying, "My boyfriend, I left him. He never came home?"
MS. MCCABE: I don't remember the specifics of what was said.
MR. JACKSON: Your Honor, if we could, I would ask that we cue up Exhibit 4 for the jurors at runtime 420.
JUDGE CANNONE: Okay.
MR. JACKSON: Before we play this, I'm going to play just like a second of it, and ask if you can hear the volume.
MR. JACKSON: If we could, Mr. Wolk.
MR. JACKSON: Could you hear anything?
MS. MCCABE: Oh, I can hear it, yes.
MR. JACKSON: I don't how loud it's going to be, quite frankly.
(Video played.)
MR. JACKSON: Ms. McCabe, will you please attention to the audio portion of this video as you -- as this is played.
(Video played.)
MR. JACKSON: Could you hear that?
MS. MCCABE: I heard something.
MR. JACKSON: Could you hear my client? Did it sound like Ms. Read?
MS. MCCABE: It sounded like a female.
MR. JACKSON: Did it sound like Ms. Read, the female?
MS. MCCABE: I'm not sure. Could I listen to it again?
MR. JACKSON: With the Court's permission, one more time?
JUDGE CANNONE: One more time.
MR. JACKSON: Could you hear it?
MS. MCCABE: I could hear it, yes.
MR. JACKSON: What did she say?
MS. MCCABE: I have no idea.
MR. JACKSON: Did she say, "My boyfriend. I left him. He never came home?"
MS. MCCABE: I could not make that out.
MR. JACKSON: You testified on direct examination that you were basically a passenger along in this ride along the early morning hours of January 29, 2022, that you were not the person in charge, correct?
MS. MCCABE: I was in the passenger seat. Ms. Roberts was driving.
MR. JACKSON: It was a bad question on my part. Let me see if I can reframe that. You testified that it was Kerry Roberts was basically the take charge person in the scenario between and among the three of you: you, Ms. Read, and Ms. Roberts, correct?
MS. MCCABE: Yes.
MR. JACKSON: Not you, correct?
MS. MCCABE: No.
MR. JACKSON: Now, you were just sort of along for the ride, assisting how you could, correct?
MS. MCCABE: I was looking -- I was trying to help Ms. Read in finding John O'Keefe.
MR. JACKSON: If we could play a clip starting at -- and I'm going to ask you Ms. McCabe to look at several clips. The first one starting at 621, the runtime to 741. It's just over minute.
MR. JACKSON: With the Court's permission?
JUDGE CANNONE: Yes.
(Video played.)
MR. JACKSON: Pause, please.
MR. JACKSON: Do you recognize the three individuals in the foreground of this video?
MS. MCCABE: I do, yes.
MR. JACKSON: Can you start from left to right, and describe for the jurors who we're looking at?
MS. MCCABE: I believe that's me in the black coat. To the right of me, is Ms. Roberts, and on the other side of the car is Ms. Read.
MR. JACKSON: Ms. Roberts has, just to distinguish, Ms. Roberts seems to have fur on her hood, where you did not?
MS. MCCABE: Yes.
MR. JACKSON: If you could go ahead and play that, please.
(Video played.)
MR. JACKSON: Pause it, please.
MR. JACKSON: Can you see who it appears you're talking to at that point?
MS. MCCABE: I don't know who that is, no.
MR. JACKSON: Go ahead and play it.
(Video played.)
MR. JACKSON: Pause it.
MR. JACKSON: Does it appear that you're engaged in conversation with that person while Ms. Roberts is attending to something in the truck and Ms. Read is running back and forth?
MS. MCCABE: Yes, I was speaking to whoever that was.
MR. JACKSON: Do you believe that was a police officer?
MS. MCCABE: I believe, yes.
MR. JACKSON: Go ahead and play.
(Video played.)
MR. JACKSON: Mr. Wolk, if you'll stop it at 7:41, please.
(Video played.)
MR. JACKSON: Could you see what is depicted in the video about that minute and ten second runtime?
MS. MCCABE: Yes.
MR. JACKSON: Did it appear that you were engaged in a conversation with that other person?
MS. MCCABE: Yes.
MR. JACKSON: When that other person walked away, could you see his jacket?
MS. MCCABE: I couldn't make it out, no.
MR. JACKSON: Did it appear he was a police officer?
MS. MCCABE: I'm going to assume it was a police officer, yes.
MR. JACKSON: Okay. In that video, who looks more like she is taking charge, you or Kerry Roberts?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did it appear in that video that you're the one controlling the narrative, at least with law enforcement at that point?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Does it appear in that video that you're the one engaging in conversation with law enforcement while Kerry Roberts and Ms. Read are otherwise occupied?
MS. MCCABE: I am speaking with law enforcement, yes.
MR. JACKSON: If we could move to runtime 856.
(Video played.)
MR. JACKSON: Pause it.
MR. JACKSON: Can you see yourself in that video?
MS. MCCABE: I can, yes.
MR. JACKSON: Which person are you?
MS. MCCABE: I'm in the far right.
MR. JACKSON: Speaking to someone?
MS. MCCABE: Yes.
MR. JACKSON: Who is that you're speaking to?
MS. MCCABE: I can't make it out, but it looks like a police officer, possibly.
MR. JACKSON: And Ms. Roberts is directly in the middle of the screen; is that right?
MS. MCCABE: I thought that was Ms. Read, but I could be wrong.
MR. JACKSON: Let's go ahead and play it.
(Video played.)
MR. JACKSON: At 926, stop, please.
(Video played.)
MR. JACKSON: In that video clip, who among the three of you appear to be most engaged with law enforcement at that time?
MR. BRENNAN: Objection.
JUDGE CANNONE: Can you tell? Can you answer that, Ms. Read?
MS. MCCABE: So I mean --
JUDGE CANNONE: Ms. McCabe.
MS. MCCABE: Yes, I can.
MS. MCCABE: I was speaking to police officers, yes. I was trying to help them.
MR. JACKSON: Okay.
MR. JACKSON: Can we go to runtime 1049 -- 1049 to 1155, Mr. Wolk.
(Video played.)
MR. JACKSON: Pause it.
MR. JACKSON: Who is it that is gesticulating in the video?
MS. MCCABE: That is me.
MR. JACKSON: Go ahead and play it.
(Video played.)
MR. JACKSON: Did you see yourself in that video, that clip, about minute long clip?
MS. MCCABE: Yes, I did.
MR. JACKSON: Who among the three of you appeared to be most engaged with law enforcement in that clip?
MS. MCCABE: I was.
MR. JACKSON: Runtime 2022, Mr. Wolk.
(Video played.)
MR. JACKSON: Stop it.
MR. JACKSON: Do you see yourself in that video?
MS. MCCABE: I do, yes.
MR. JACKSON: You were just walking from frame right?
MS. MCCABE: Yes.
MR. JACKSON: From frame right going left?
MS. MCCABE: Yes, behind Ms. Roberts.
MR. JACKSON: And that's you right in the middle of the screen?
MS. MCCABE: Yes, it is.
MR. JACKSON: And Ms. Roberts had already run to her -- went to her SUV, correct?
MS. MCCABE: Yes.
MR. JACKSON: We're going to play this.
MR. JACKSON: This is about a two minute clip for the Court's information.
JUDGE CANNONE: All right.
MR. JACKSON: And this is the last.
(Video played.)
MR. JACKSON: Mr. Wolk, can you pause it? Can you tell who you're speaking to there?
MS. MCCABE: I think it's Mike Lank.
MR. JACKSON: Go ahead and play it.
(Video played.)
MR. JACKSON: May I just have a moment, Your Honor?
MR. JACKSON: Ms. McCabe, who was most engaged in that clip with law enforcement?
MS. MCCABE: I was.
MR. JACKSON: Between and among you and Kerry Roberts and Ms. Read?
MS. MCCABE: I was.
MR. JACKSON: You noticed when Mr. O'Keefe was placed on the gurney and a fire truck had moved past you, correct?
MS. MCCABE: Yes.
MR. JACKSON: Did you notice what your reaction was when that gurney passed you?
MS. MCCABE: I didn't know.
MR. JACKSON: Did you see that you turned your back completely to Mr. O'Keefe as he passed by?
MS. MCCABE: If that happened, it wasn't on purpose.
MR. JACKSON: Ms. McCabe, when you got to the scene --
MR. JACKSON: You can take that down.
MR. JACKSON: When you got to the scene at 6:03 in the morning, you immediately recognized, did you not, that this was an emergency situation, high-intensity emergency situation, correct?
MS. MCCABE: I knew it was an emergency situation, obviously.
MR. JACKSON: As a matter of fact, a man's life was in grave danger. You knew that?
MS. MCCABE: Yes, I did.
MR. JACKSON: And this was someone that was a friend of yours, correct?
MS. MCCABE: Yes, it was a dear friend.
MR. JACKSON: Not just a friend, but a police officer who was laying, and as far as you knew, dying in the snow; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You knew that you needed to get immediate medical attention, emergency medical attention, to him as quickly as you possibly could; is that right?
MS. MCCABE: Yes.
MR. JACKSON: You knew that minutes counted, right?
MS. MCCABE: Yes.
MR. JACKSON: You knew that's seconds counted, correct?
MS. MCCABE: Correct.
MR. JACKSON: This man was grasping, as far as you knew, grasping and clinging to life at that moment; is that right?
MS. MCCABE: Yes.
MR. JACKSON: That's why you called 911 to get emergency personnel, who are trained in CPR and lifesaving measures, to the scene to the gentleman, to Mr. O'Keefe, as quickly you possibly could, correct?
MS. MCCABE: Yes.
MR. JACKSON: You called 911 at about 6:03 and 35 seconds; is that right? I don't expect you to know down to the second, but it's about a couple of minutes after 6:00?
MS. MCCABE: Right after, yeah, we found him, yes.
MR. JACKSON: And you're aware from the dash cam that Officer Saraf got there about 6:10, almost on the nose, right?
MS. MCCABE: I didn't pay attention to the time.
MR. JACKSON: You'll agree with me that the was about six and a half minutes or so between the time you called 911 and the time Officer Saraf got there; is that right?
MS. MCCABE: If that's what the dash cam says, yes.
MR. JACKSON: On that 911 call, you referred to John O'Keefe as a man passed out in the snow?
MS. MCCABE: Yes.
MR. JACKSON: You didn't say this is my friend?
MS. MCCABE: I needed to get, like you said, emergency there.
MR. JACKSON: Did you say this is my friend?
MS. MCCABE: I wasn't going to give a description and say my friend is in the snow. I was going to give them the information that I thought was the most important at the time.
MR. JACKSON: Did you say his name?
MS. MCCABE: I just said a man because that was the most important identifying.
MR. JACKSON: You didn't say John?
MS. MCCABE: Eventually, in the 911, I do say his name.
MR. JACKSON: You didn't initially say O'Keefe, correct?
MS. MCCABE: No, not at that -- not as it was a man in the snow --
MR. JACKSON: And you didn't say -- and you didn't say he's a Boston police officer or an off duty police officer?
MS. MCCABE: Again, a man needed help.
MR. JACKSON: Yes or no, did you say that?
MS. MCCABE: I didn't.
MR. JACKSON: Do you think that might've -- yes or no, do you think that might have sped things up if they knew, the 911 operator knew, that this was a fallen officer, a fellow officer?
MS. MCCABE: I think 911 comes to everyone equally. I don't think they would have --
MR. JACKSON: Do you think that might've been something important to relay to the 911 officials?
MS. MCCABE: I don't know.
MR. JACKSON: You were even asked by the 911 operator, does anybody know CPR, and your answer was no, correct?
MS. MCCABE: I'd have to listen to it to remember my exact answers.
MR. JACKSON: But it was basically in the negative. No, we're not professionals. We're just out here doing the best we can, correct?
MS. MCCABE: I didn't say that, no.
MR. JACKSON: You didn't believe Karen Read knew CPR?
MS. MCCABE: I didn't know. I don't think I answered that question. I don't think I was asked.
MR. JACKSON: You don't know if Kerry Roberts knew CPR, correct?
MS. MCCABE: I didn't know if they knew CPR, correct.
MR. JACKSON: And none of you are paramedics?
MS. MCCABE: No.
MR. JACKSON: None of you are first responders?
MS. MCCABE: No.
MR. JACKSON: None of you are trained in emergency lifesaving techniques in anyway, correct?
MS. MCCABE: Correct.
MR. JACKSON: I have a question, Ms. McCabe. On all of Fairview, the entire road between Chapman and Cedarcrest, can you think of any person on that road who might have had lifesaving techniques trained into them - first responder, someone who knew how to deal with someone in distress, someone with high-skill level training, could you think of anyone on Fairview who had that kind of training?
MS. MCCABE: Can I have, or did I then? What are you asking me?
MR. JACKSON: Did you then?
MS. MCCABE: No, then my focus was on John O'Keefe.
MR. JACKSON: Okay. Let me narrow the focus. How about on the property? How about at 34 Fairview, could you think of anyone who was a first responder who would have lifesaving training, lifesaving technique training under his belt?
MS. MCCABE: Yes, my brother-in-law Brian Albert.
MR. JACKSON: And you didn't go in the house, did you?
MS. MCCABE: No, I did not.
MR. JACKSON: When you arrived at the scene, you didn't go in not until much later, correct?
MS. MCCABE: Our focus was John.
MR. JACKSON: You knew that Brian Albert was inside the house. You had just been with him hours earlier, correct?
MS. MCCABE: Yes.
MR. JACKSON: You knew that his window was 30 feet away. You were staring at it. You could look at it if you wanted to, correct?
MS. MCCABE: It's off to an angle.
MR. JACKSON: And you didn't go in the house then either?
MS. MCCABE: I did not, no.
MR. JACKSON: You knew that John O'Keefe was clinging to life during those precious, those precious minutes and seconds; is that right?
MS. MCCABE: I did, yes.
MR. JACKSON: And you also knew that Brian Albert, your brother-in- law, was a first responder trained to deal with people in that kind of distress, correct?
MS. MCCABE: In that moment, my only thoughts were John and everything we could do for John.
MR. JACKSON: And you knew that there were warm blankets inside the house; is that right?
MS. MCCABE: I did, yes. There were warm blankets in the house --
MR. JACKSON: And you still never went in, did you?
MS. MCCABE: No, I went and attended to John because once I finished calling 911, I went over to John, and Kerry Roberts asked me to take over compressions. So I felt like that was more important and 911 was on the way. I never thought about going in the house. I just thought how can I help John.
MR. JACKSON: You never thought about going in the house, but you did pull out your cell phone and made two phone calls, didn't you?
MS. MCCABE: After I called 911, I tried calling my sister, yes.
MR. JACKSON: While John was out in the cold clinging to life, you weren't doing chest compressions at 6:07 and 6:08, were you?
MS. MCCABE: I was walking over when I was calling.
MR. JACKSON: You were calling your sister on the phone, weren't you, Ms. McCabe?
MS. MCCABE: I was calling them to see if they would come out, but I was going right over to --
MR. JACKSON: And you could've walked the 25 feet to their front door, walked in the house, and screamed for Brian Albert to come out and help you in those precious seconds and minutes, couldn't you?
MS. MCCABE: That would have taken me away from helping John, getting Kerry blankets, giving him compressions.
MR. JACKSON: And making those two very important phone calls at 6:07 and 6:08 that you say were not answered, correct?
MS. MCCABE: Those were not important phone calls. I tried to call my sister and then I focused on John.
MR. JACKSON: They were not important phone calls, but they were important enough for you to make while John is clinging to life right there in front of you, right?
MS. MCCABE: As I was walking over, I called to see if she would answer.
MR. JACKSON: And she didn't answer. Let's talk about that. She didn't answer, according to you.
JUDGE CANNONE: So we'll well beyond the luncheon break.
MR. JACKSON: Your Honor, I have two more questions.
JUDGE CANNONE: Okay.
MR. JACKSON: And I'll wrap it.
JUDGE CANNONE: Okay.
MR. JACKSON: Let's talk about that real quick. She didn't answer the phone, did she?
MS. MCCABE: No, she didn't.
MR. JACKSON: So you have a situation where a man is laying dead or dying in the front yard of your sister's house. You see nothing in terms of life inside. The house lights aren't coming on. They're not getting up. They're certainly not coming outside, right?
MS. MCCABE: They were sound asleep.
MR. JACKSON: They weren't coming outside, were they?
MS. MCCABE: Because they were asleep.
MR. JACKSON: You didn't know if they were asleep. All you knew was there was a severely injured man on the front lawn of their house, and your sister didn't answer the phone - not once, but twice, correct?
MS. MCCABE: Correct. She didn't answer the phone.
MR. JACKSON: Did you think your sister might have been in peril? Did you think to go inside the house and check that they're okay?
MS. MCCABE: I had no reason to think that they weren't okay.
MR. JACKSON: You had no reason to believe they weren't okay. A man was dead or dying on their lawn, and your sister is not answering the phone, and nobody is coming out to the chaos of Karen Read screaming on their front lawn. You didn't think there were some reason to believe they could have been in peril?
MS. MCCABE: I didn't because your client was screaming that she hit him, she had a cracked taillight.
MR. JACKSON: Oh, so you --
MS. MCCABE: I didn't --
MR. JACKSON: Ms. Mcabe --
MS. MCCABE: -- but my focus -- can I finish, please?
MR. JACKSON: You had solved the whole crime right then and there. You solved the whole case?
MS. MCCABE: No, I didn't. I knew John never came in the house, so I had no concern for anyone's safety inside the house.
MR. JACKSON: The reason you didn't go inside the house is because you knew better. You knew better. You knew she wasn't in peril. You knew that Brian Albert wasn't in peril. You weren't worried at all about them, were you?
MS. MCCABE: I was not worried at all because something happened on the front lawn that had nothing to do with anything inside that house.
MR. JACKSON: You weren't worried about them at all because you knew what really happened, didn't you, Ms. McCabe?
MS. MCCABE: At that moment, I didn't know that he was hit by a vehicle and there was taillight found next to him.
MR. JACKSON: That's all I have, Your Honor.
(Court in recess at 1:07 p.m.)
(Court in session at 1:59 p.m.)