Karen Read Trial (Pt 39.2) — Matt McCabe - Cross Examination

[00:00:00] Speaker 1: I'd like to start by discussing January 22nd, the week prior to January 29th. Do you remember that Saturday? [00:00:19] Speaker 2: Yes, I do. [00:00:21] Speaker 1: You had been at one of your daughter's hockey games that day. [00:00:27] Speaker 2: If it's the Saturday before, we're saying? [00:00:29] Speaker 1: Yes. Yes, I was. And you wound up going to the hillside in Camden, correct? That is correct. You went with your wife, Jennifer McCabe? Yes. When you got there, you saw Karen Reed and John O'Keefe there together, correct? [00:00:45] Speaker 2: I was there previous to them, but yes, I saw them there, yes. Eventually, I saw them there. [00:00:51] Speaker 1: I should have phrased the question that ultimately you ran into John and Karen together, correct? [00:00:56] Speaker 2: Yes, I did. [00:00:57] Speaker 1: And when you came in contact with them, you and your wife and Brian Albert and his wife, Nicole, who's your sister-in-law, hung out with Karen Reed and John O'Keefe, correct? [00:01:13] Speaker 2: Yes, there was a big group of people hanging out together, correct? [00:01:16] Speaker 1: There were other people in addition to the ones that I've just named? [00:01:19] Speaker 2: Yes, there were. [00:01:20] Speaker 1: So you were with John and Karen for maybe around an hour or so that night of January 22nd? [00:01:28] Speaker 2: I'd say I don't know exactly what time they arrived, but yes, I'd say they were there for at least an hour. [00:01:33] Speaker 1: And during that hour span of time, they appeared to be enjoying each other's company? [00:01:42] Speaker 2: Yes. [00:01:43] Speaker 1: And the two of them had arrived together, correct? [00:01:49] Speaker 2: They walked in together, yes. [00:01:51] Speaker 1: And there were no problems that night that you could see between John and Karen, correct? [00:01:58] Speaker 2: Yes, I did not see any problems. [00:01:59] Speaker 1: Okay, now moving on to the waterfall on January 29th, I am not going to go through with you who arrived when and who left when and where people sat at which table. We're going to skip all that, and I'd like to streamline the questioning if I can. And I just want to talk to you about two or three areas. You would agree that at the waterfall, the mood among the people who were there was festive, correct? Yes, that's correct. Everybody appeared to be happy and enjoying themselves, correct? [00:02:33] Speaker 2: Everybody was enjoying each other's company, correct. [00:02:36] Speaker 1: Specifically with regard to John O'Keefe and Karen Reed, they appeared to be quite happy that Kayleigh had been accepted into Bishop Fian, correct? [00:02:47] Speaker 2: John, I recall talking to John about it, and he was happy that Kayleigh was at Bishop Fian. I do not recall speaking to Karen about Bishop Fian, but definitely John was happy about Kayleigh being in Bishop Fian. [00:02:58] Speaker 1: Alright, you have previously testified that they were both excited about that, have you not? [00:03:06] Speaker 2: If I did, I did. I just know that John mentioned that he was out because he was excited about Kayleigh being at Bishop Fian. If I looped them both in, then they both were happy. I don't remember what I said when I said it. I didn't, put it this way, I didn't see her, she wasn't happy about it. Does that make sense? [00:03:25] Speaker 1: Yeah, well, I'm just going by your words, sir. As far as you could see, they were both excited about her acceptance, correct? [00:03:34] Speaker 2: Yes, yes. [00:03:35] Speaker 1: And they had just found out the previous day or so, correct? [00:03:39] Speaker 2: I don't recall what day they found out, but I know that John mentioned he had went out for some beers. He was excited because Kayleigh got into Bishop Fian, and he mentioned he was out with another one of his friends whose daughter also got into Bishop Fian. [00:03:54] Speaker 1: Right, and it appeared to be new news, correct? [00:03:57] Speaker 2: Oh, yes. It was news they were waiting on, yes. [00:04:00] Speaker 1: Right, you hadn't heard it before, this is the first that you heard it, correct? [00:04:05] Speaker 2: I don't know if I heard it, if somebody, if a kid had already leaked it the day before or that day, but first I heard it from John. [00:04:13] Speaker 1: All right, but it was clear to you that it was really important to John O'Keefe that Kayleigh get into Bishop Fian and go there, correct? [00:04:21] Speaker 2: He was, they applied, he was excited for her to go there. [00:04:24] Speaker 1: And it was clear that he believed it was an achievement for her, correct? Yes. And you could glean also that John O'Keefe felt like it was an achievement for him as well, correct? [00:04:36] Speaker 2: Jackson, your honor. [00:04:38] Speaker 3: Could you glean that from him? [00:04:40] Speaker 2: He was, he was happy that she got in. I couldn't, I don't know what he was, if he felt it was his achievement, he was happy for Kayleigh. [00:04:46] Speaker 1: Of course, and he was doing right by his sister's daughter, correct? [00:04:51] Speaker 2: Jackson. I don't know what that means. I can go to any school and do right. [00:04:56] Speaker 1: All right. In any case, everything seemed good that night? [00:04:59] Speaker 2: Everything was good. [00:05:01] Speaker 1: There were no arguments? [00:05:02] Speaker 2: There were no arguments that I saw. [00:05:04] Speaker 1: John was drinking beer? [00:05:07] Speaker 2: In my recollection, yes. [00:05:09] Speaker 1: And you had previously testified that you saw Karen was drinking some type of clear liquid that you assumed was some type of vodka drink, correct? [00:05:17] Speaker 2: That is correct. [00:05:18] Speaker 1: But you didn't think that they were drinking much, correct? At the waterfall? [00:05:23] Speaker 2: No. They were only there for an hour, so. [00:05:26] Speaker ?: Right. [00:05:26] Speaker 1: And they got there around 11, correct? [00:05:31] Speaker 2: Give or take, yep. 11-ish. [00:05:33] Speaker 1: And that bar is pretty strict about last call, correct? That is correct. And you spoke with both of them during the course of the night, correct? Yes. Neither John nor Karen was intoxicated, in your view, correct? [00:05:47] Speaker 4: Jackson. [00:05:48] Speaker 3: Can you answer that? [00:05:50] Speaker 2: They were drinking. I don't know what the guideline of intoxication is, but they were drinking. [00:05:58] Speaker 1: Do you recall testifying before the grand jury regarding this matter on April 26th of 2022? [00:06:09] Speaker 2: If you have that, then I must have done. I don't recall my questions, that question specific, but yes. [00:06:15] Speaker 1: Right. Well, I didn't ask you about the questions. I just asked if you recall testifying before the grand jury on that date. [00:06:22] Speaker 2: I don't remember the date I recall testifying before the grand jury. [00:06:26] Speaker 1: If I suggested to you that it was April 26th of 2022, would you quarrel with that? [00:06:31] Speaker 2: Did you say would I quarrel? Yeah. No, it was definitely around that time. Okay. [00:06:36] Speaker 1: And at that grand jury presentation, Mr. Lally was there, correct? Yes. None of the defense team was there, correct? No. Karen Reed was not there, correct? No. And there was no judge there, correct? [00:06:52] Speaker 2: No. [00:06:53] Speaker 1: And April 26th was approximately three months after January 29th of 2022? [00:07:00] Speaker 2: Yes. [00:07:01] Speaker 1: Is it fair to say that your memory about whether or not John and or Karen was intoxicated would have been better on April 26th of 2022 than it would be today? [00:07:14] Speaker 4: May we approach on. [00:07:16] Speaker 3: All right. I'm seeing you at that time. Joe's feel free to stand up. Yes. [00:07:25] Speaker 1: I had just asked you if your memory of your observations of Karen Reed and John O'Keefe. from January 29th would have been better on April 26th of 2022 than it would be today. [00:07:40] Speaker 2: Yes. I think that's fair to say. [00:07:41] Speaker 1: And that's because your memory doesn't get better over time, correct? [00:07:47] Speaker 2: I don't know. I would say it's fair to say, yes, my memory would be better that day. [00:07:53] Speaker 1: And on that day, you were asked by Mr. Lally, quote, did either of them strike that? I'm going to go back to the previous sentence just to put it in context. Yes. The previous sentence was from Mr. Lally. Obviously, you've had social occasions with Mr. O'Keefe and Ms. Reed before, correct? And your answer was, oh, yes, right? [00:08:17] Speaker 4: Objection here. [00:08:19] Speaker 3: I'm going to let that one go. [00:08:22] Speaker 2: My answer is yes. I had previous. I don't know if I said, oh, yes, but my answer was yes. Of course, I had previous relationships with them. [00:08:29] Speaker 1: I'm sorry. I cut you off, sir. [00:08:30] Speaker 2: I'm saying, of course, I had previous relationships with them. [00:08:32] Speaker 1: And the question that I wanted to direct you to, just to put it in context, was did either of them, speaking about John and Karen, on this particular evening, seem sort of overly intoxicated to you? Do you recall that question? [00:08:50] Speaker 2: I don't recall the specific question, but that's the question. And your answer was no to that? Yes. If that's my answer, then it was no. [00:09:02] Speaker 1: In terms of whether you can confirm that that was the question and answer, if I showed you the transcript, would that refresh your memory? Yes, of course it would. This is 2103, lines 13 to 15, for council. And I didn't ask permission, you're right. I'm sorry. Thank you. Having reviewed that transcript, did I get the question and answer correct? [00:09:34] Speaker 2: Yes, you did. [00:09:37] Speaker 1: Okay. Just a couple more things about the waterfall. I wanted to ask you about Brian Albert and Brian Higgins, sir. Yes. They were both there that night while you were there, correct? [00:09:50] Speaker 2: Yes, they both were there. [00:09:51] Speaker 1: And they are both pretty big guys, correct? [00:09:55] Speaker 4: Jackson. [00:09:56] Speaker 3: Can you answer that? [00:09:58] Speaker 1: Yes, they're good size guys. Did you see Brian Albert and Brian Higgins practicing fighting at the waterfall? Practicing fighting? Right. Did you see them kind of square up in a fighting stance to each other? [00:10:14] Speaker 2: I recall them grabbing each other. I don't recall them squaring up like they were fighting each other. No. They were playing a little grab ass with each other. I did see them grab each other. I don't recall a physical, hey, let's go duke it out. I do not recall that. Okay. [00:10:28] Speaker 1: So are you saying, taking you literally, that they grabbed each other's asses? Is that it? No. [00:10:34] Speaker 2: I'm saying grab ass. It's a figure of speech. [00:10:36] Speaker 1: Okay. But they didn't grab each other. They were in a fighting stance, weren't they? Didn't they crouch down low with each other? [00:10:48] Speaker 2: I'm telling you, I don't recall seeing them crouching in a fighting stance. I recall someone grabbing somebody. I don't remember who grabbed who. I just recall like a bear hug or something. I thought I recall them doing a bear hug. [00:11:01] Speaker 1: All right, so you recall them, one of them getting behind the other one and kind of restraining them or grabbing them? [00:11:09] Speaker 2: I think there was a bear hug, yeah. That's what's in my memory. I don't. [00:11:15] Speaker 1: And you would agree with me that after closing time, Brian Albert and Brian Higgins were two of the people who went back to 34 Fairview Road, the Albert home, correct? [00:11:25] Speaker 2: Yes, that's correct. [00:11:26] Speaker 1: But before everyone left, before you left, it was announced around the table that everyone was welcomed back at Brian Albert and Nicole Albert's house, correct? Yes. Karen Reed and John O'Keefe were both there when that invitation was announced, correct? Yes. And you would agree that it was expected that Karen Reed and John O'Keefe would go to the Albert home that night, correct? [00:11:56] Speaker 2: If they wanted to come, they were welcomed, yes. [00:11:58] Speaker 1: And that plan would have been for them to go inside the Albert home, correct? Yes. Do you recall what time you left the waterfall? [00:12:09] Speaker 2: I left the waterfall after midnight, give or take 12.10, 12.15-ish. I don't know the exact specific time. Well, a little before 12.15, but definitely 12.10-ish, 12.15-ish in there. [00:12:25] Speaker 1: And you were one of the last to leave the waterfall? [00:12:28] Speaker 2: Yes, as I had mentioned, Nicola Keefe and I walked out together from the waterfall. [00:12:35] Speaker 1: Your wife, Jennifer McCabe, had walked out of the bar physically before you did, correct? [00:12:40] Speaker 2: Yes, that's correct. [00:12:41] Speaker 1: And you actually met her in the parking lot? [00:12:46] Speaker 2: She was already in the vehicle in the parking lot, correct. [00:12:48] Speaker 1: And then you got into the car to drive to the Albert's home, correct? [00:12:54] Speaker 2: Yes, that's correct. [00:12:54] Speaker 1: All right, so I'm going to ask you about the ride back to the Albert's home in a bit, but right now I want to skip to when you got there, okay? Okay. When you first got there, your wife parked your vehicle in the driveway, correct? [00:13:09] Speaker 2: Yes. [00:13:10] Speaker 1: Which side of the driveway did you park your vehicle in? [00:13:14] Speaker 2: As I mentioned yesterday, I don't recall if it was immediately on the left, meaning the left towards the lawn, or if she was in the next spot over. She pulled in, I don't remember exactly if it was here or one spot over, but she pulled in. [00:13:28] Speaker 1: How many people were in the driveway at that time? [00:13:32] Speaker 2: At least two. I don't recall if there was more than two. [00:13:35] Speaker 1: So if there was at least two, those two would have been parked abutting the garage area? In other words, would they be, let me rephrase. So there are two lanes in that driveway, correct? [00:13:51] Speaker 2: My recollection is two lanes, but there is more space if you, I know when we go over and we've gone over, there's more space to kind of park three cars. Right? To the right, correct. Okay. But we weren't to the right. We were either left or middle. [00:14:05] Speaker 1: You were behind one vehicle, whichever lane you were in, or were you pulled right up to one of the garage entrances? [00:14:12] Speaker 2: I don't recall if we pulled all the way in or not, but I don't remember. [00:14:18] Speaker 1: So there were at least two vehicles in the driveway before you got there, correct? [00:14:24] Speaker 2: In the driveway? [00:14:26] Speaker 1: Yes. [00:14:26] Speaker 2: Yes, there were cars in the driveway. [00:14:29] Speaker 1: And when you parked in the driveway, fair to say that there was no black SUV at the Alberts' home? [00:14:39] Speaker 2: Are you referencing Karen's SUV? I don't know what color the Alberts' cars were. Oh, okay. Are you referencing their SUV? [00:14:46] Speaker 1: Put it this way. Yes, I'm referencing Karen's SUV. [00:14:49] Speaker 2: That was not at the home. [00:14:50] Speaker 1: And that was not in the driveway, correct? [00:14:53] Speaker 2: Karen's SUV was not in the driveway. [00:14:54] Speaker 1: And it was not adjacent to the property or on the street anywhere that you could see. Correct. It was not there. All right. But you say that there was a Jeep in the street at that time, correct? [00:15:05] Speaker 2: There was a Jeep parked in front of the end of the driveway in front of the mailbox. And that Jeep belonged to Brian Higgins? I found out it belonged to Brian Higgins. I didn't know it was his Jeep when I arrived. [00:15:20] Speaker 1: And it had a plow on the front of it? Yes, it did. It was parked adjacent to the Alberts' property on Fairview, facing up the hill toward Chapman Street, correct? Yes. And at the time that you arrived, that was the only vehicle that was parked on Fairview Street adjacent to the Albert property, correct? Yes. And your testimony is that that Jeep remained parked in front of the Albert house, just to the left of the driveway as you faced the house, until Brian Higgins finally left and drove it away at the end of the night, correct? [00:16:01] Speaker 2: That's my recollection, was his Jeep was out in front of the mailbox. [00:16:06] Speaker 1: With the court's permission, could we display exhibit 66? [00:16:09] Speaker 3: Okay. [00:16:15] Speaker 1: So, Mr. McCain, I'm highlighting for the spotlight the front of the Albert's home. When I get to the point where the Jeep was parked, can you stop me? And you can adjust it right or left if I go too far. [00:16:29] Speaker 4: Jackson, Your Honor. [00:16:31] Speaker 3: Can we have him use the print, the laser pointer first, and then? Sure. [00:16:37] Speaker 1: I hope you're better than I am. Yeah, I was hoping I didn't have to do this. Oh, you have the other laser pointer. [00:16:41] Speaker 2: I don't have one. [00:16:42] Speaker 1: That's fine. [00:16:42] Speaker ?: No. [00:16:46] Speaker 1: You could, yeah, please. [00:16:49] Speaker 2: The Jeep was right there. From the edge of the driveway, it's right there. I believe it was a two-door Jeep. [00:16:57] Speaker 1: Okay, it looks like a part of the Jeep would have been blocking the driveway. [00:17:03] Speaker 2: No, where the mailbox is. The Jeep was right there. It was not blocking the driveway. [00:17:10] Speaker 1: All right. The, uh, I'm going to step on both of you. [00:17:14] Speaker 3: Sure. [00:17:18] Speaker 1: The mailbox that's spotlighted there, would that have been where the back of the Jeep was? [00:17:24] Speaker 2: Yeah, the back would have been right in the vicinity of the, of, uh, the edge of the driveway in the mailbox. [00:17:29] Speaker 1: I see. So it wasn't blocking the driveway at all when you saw it? [00:17:32] Speaker 2: No. [00:17:33] Speaker 1: Uh, and it was facing to the left as we look at exhibit 66, correct? [00:17:37] Speaker 2: Facing, heading to the left of the house, correct? Okay. [00:17:41] Speaker 1: Um, we can have the lights back on. And as you testified, that, that Jeep was there the whole night. Brian Higgins didn't go out to move it at any point, correct? [00:17:50] Speaker 2: I never saw Brian Higgins go outside to move his Jeep. [00:17:55] Speaker 1: About five minutes after you got to the Albert home that night, you saw a black SUV parked outside the home, correct? [00:18:03] Speaker 2: Yes. Again, I don't know the exact minutes, but give or take, um, four or five minutes. [00:18:08] Speaker ?: Okay. [00:18:09] Speaker 1: And when you saw that black SUV parked outside the Albert home, Higgins' Jeep was still there, correct? [00:18:16] Speaker 2: Yes. To my recollection, the Jeep was still outside in front of the mailbox. [00:18:21] Speaker 1: The black SUV was parked in front of Higgins' Jeep with the plow on the front, correct? [00:18:27] Speaker 2: That's correct. [00:18:29] Speaker 1: How far or close to that Jeep? Was the black SUV? [00:18:36] Speaker 2: I don't recall the exact distance. Again, when I looked outside, I noticed the, my focus was on the black SUV, which looked outside, would have been in front of the front door. [00:18:48] Speaker 1: Um, with regard to the distance between the Jeep and the black SUV, was it greater or smaller than the distance between you and me right now? [00:18:58] Speaker 2: Oh, it would be smaller. [00:19:00] Speaker 1: Um, if I'm the end of the, if you're the end of the Jeep and I'm the end of the, let's say that I'm the rear end of the, the, uh, black SUV and you are the front end of the Jeep. [00:19:11] Speaker 2: Yeah, I'd say you'd be, you'd be a little closer to me. [00:19:13] Speaker 1: Um, with the court's permission, may I walk closer to the witness so that he could give an estimate? Sure. And you can just stop me, sir. [00:19:21] Speaker 2: Yeah. I don't, I don't know. Again, when I looked outside, I was focused on the SUV. I wasn't focused on the Jeep or the truck. I don't know the exact distance. You could walk three more feet or three feet that way, but it was out in front of the house. That's all I can tell you. [00:19:41] Speaker 1: Um, you will agree with me that you've given conflicting information about where the black SUV was when you first saw it? [00:19:50] Speaker 2: If you tell me I gave conflicting information, you can show it to me. I don't recall. I, I, I've always said the SUV was in front of the house. [00:19:59] Speaker 1: Right. And when you said in front of the house, you meant that as you look out the front door of the Albert residence, which on exhibit 66 would have been the door to the left. That's the classic front door. [00:20:13] Speaker 2: The classic front door looking at the house on the main part of the colonial. [00:20:17] Speaker 1: Looking straight out from there. That's where the black SUV was positioned. Correct. In that vicinity. Correct. Right. It would have been sort of directly in front of you as you look out that front door. [00:20:28] Speaker 2: Correct. Like I said, in the vicinity of looking out the front door was the black SUV. If it was three feet this way or three feet this way or three feet that way, I don't know. It was just out in front of the house. [00:20:38] Speaker 1: Right. Uh, and that was where it was when you first spotted it according to your testimony today. Correct. [00:20:44] Speaker 2: Yes. [00:20:45] Speaker 1: But you spoke to Michael Proctor during the afternoon of January 29th. Did you not? Yes, I did. That was the very day that these events occurred. Correct. Yes, it was. You would agree with me that your memory of where that black SUV was when you first spotted it on January 29th would have been better on that very day than it would be today. Correct? Possibly. Yes. It's almost two and a half years later. [00:21:11] Speaker 2: Two and a half years that I've lived in my memory. Yes. [00:21:14] Speaker 1: But your memory does not get better over time, correct? [00:21:17] Speaker ?: Jackson. [00:21:18] Speaker 3: Distinct. [00:21:19] Speaker 1: On January 29th of 2022, when you spoke to Michael Proctor, you told him that you saw a black SUV parked to the right of the residence as you look at the property from the street. Did you not? [00:21:33] Speaker 2: I did not. I did not. Can you elaborate what you mean by to the right of the residence? [00:21:40] Speaker 1: Well, I will just repeat the question. Did you tell Michael Proctor on January 29th of 2022 that you observed a big dark SUV parked to the right of the house? [00:22:01] Speaker 2: What right? Looking at the house to the right or looking at the house to the left? When you say right, I don't know what you mean by right. [00:22:09] Speaker 1: Is your memory exhausted as to what you told Michael Proctor? No, not at all. So if your memory is not exhausted, would you agree with me that while you were at 34 Fairview, you told Michael Proctor that you observed a big dark SUV parked to the right of the house? [00:22:30] Speaker 2: That could have been the second time I informed him of seeing the SUV. [00:22:36] Speaker 1: Okay. If I suggested to you that that was the first time, according to what you told Michael Proctor, would you dispute that? [00:22:45] Speaker 4: Jackson. [00:22:47] Speaker 1: Is your memory exhausted as to whether or not that was the first or second time, according to what you told Michael Proctor? [00:22:53] Speaker 2: My memory is not exhausted. [00:22:55] Speaker 1: Okay. So if your memory is not exhausted, do you deny telling Michael Proctor that you observed a big dark SUV parked to the right of the house? [00:23:06] Speaker 4: Jackson. [00:23:07] Speaker 3: Can you answer that? [00:23:09] Speaker 2: I don't know if I can answer it. I believe it's the second question. I told him I saw an SUV and parked in front of the house. Then I saw an SUV move further up the road, which looking out of the house would be to the right of the house. So that would be when I saw the SUV to the right of the house would be the second time I saw the SUV. I've always stated the SUV was in front of the house if looking out the front door. [00:23:36] Speaker 1: Okay. So when you talk to, so you deny telling Michael Proctor that when you first saw the SUV, by the way, sir, is this, is this funny? I'm sorry. [00:23:47] Speaker 2: This is not funny, sir. Not at all. It's been two years of misery. [00:23:52] Speaker 1: Okay. You're smiling now. That's why I ask. You keep repeating the same question. Well, I'm trying to get an answer that you won't give me, sir. When you talk to Michael Proctor on January 29th of 2022, when you first observed the big, dark SUV, you said to him it was parked to the right of the house. [00:24:09] Speaker 4: Jackson. [00:24:11] Speaker 3: This is the last time on that question. Is that right? [00:24:13] Speaker 2: That is not right. The SUV, the first time, was in front of the house, in front of, coming out the front door. The second time was it was to the right of the house. All right. [00:24:23] Speaker 1: You have to move on. Gotcha. Okay. All right. So you did not say that, but you did say that you were making those observations from the front door, correct? [00:24:36] Speaker 2: As I stated yesterday, I recall. That's a yes or no question. I'm sorry. [00:24:41] Speaker 4: Jackson, Your Honor. [00:24:42] Speaker 3: Can you answer it, yes or no? [00:24:44] Speaker 2: I can't. I said yesterday, I looked out the window and I looked out the front door. I don't remember which order. [00:24:52] Speaker 1: Well, you told Michael Proctor that the first time you looked out, it was out the front door. Did you not? [00:24:58] Speaker 2: I don't recall what I told Michael Proctor on April. [00:25:02] Speaker 1: You don't recall. May I approach, Your Honor? [00:25:04] Speaker 3: Yes. [00:25:04] Speaker 1: Page two of Proctor's report, Council. [00:25:07] Speaker 3: So next time just show it to Mr. Oh, of course. [00:25:10] Speaker 1: I'm sorry. May I approach? [00:25:15] Speaker 3: Yes. [00:25:15] Speaker 1: You had said that you don't remember what you told Michael Proctor. Did that report refresh your memory? [00:25:27] Speaker 2: I'm not saying I don't remember what I told Michael Proctor. [00:25:30] Speaker 1: I'm stating what I remember. Hold on a second, sir. You just told this jury that you don't remember what you told Michael Proctor. Those were your words. [00:25:39] Speaker 2: Yes, at the point I'm reading, I don't remember the exact wording, but I know what I told Michael Proctor. [00:25:46] Speaker 1: All right, and you told Michael Proctor that you observed a big, dark SUV parked to the right of the house. Did you not? [00:25:54] Speaker 2: At some point in the conversation, yes, I told Michael Proctor that a big, dark SUV moved to the right of the house. [00:26:01] Speaker 1: Moved to the right of the house? Is that what you just said? [00:26:05] Speaker 2: All right, let me rephrase. At some point, there was a big, dark SUV parked in front of the right of the house. I physically didn't see it move. So I need to rephrase. I can't say move. [00:26:18] Speaker 1: What I'm concentrating on now, sir, is not what your memory is today or what you testified to the jury today. I'm concentrating on what you told Michael Proctor that very day on January 29th of 2022. Okay, and you initially told him that it was parked to the right of the house, the big, dark SUV, and that you made those observations from the front door. And then you stated, you looked out the front window and observed the same big, dark SUV had moved to the other side of the property. [00:26:54] Speaker ?: Correct? [00:26:55] Speaker 3: The objection sustained. You have to break that down. And I thought we moved on from this, Mr. United. [00:27:01] Speaker 1: No, we haven't gotten to the second part of the... [00:27:03] Speaker 3: So bring the document. I'll see you at side five. One last question on this, Mr. United. [00:27:13] Speaker 1: With regard to Trooper Proctor's report that you have in front of you, right? It's I for identification? [00:27:20] Speaker 2: Yes, I'm reading the report. [00:27:22] Speaker 1: You will agree with me that you reported your conversation as saying that the vehicle was first to the right and then moved to the other side of the property, correct? [00:27:31] Speaker 4: Objection. [00:27:31] Speaker 1: Sustained. You testified before the grand jury regarding this issue on April 26th of 2022, did you not? [00:27:39] Speaker 2: Yes, I did. [00:27:40] Speaker 1: And you talked about the vehicle moving from point A to point B, correct? [00:27:47] Speaker 2: Yes, at some point. [00:27:48] Speaker 1: And you estimated that it was 15 to 20 feet or so that the SUV moved along the property line, correct? [00:27:56] Speaker 2: Yes. Again, I don't know the exact distance, but estimates. [00:27:59] Speaker 1: And you, at that point in time, you were asked to clarify what you had meant when you said that the vehicle was on first on the right side of the property. Do you recall that testimony? [00:28:11] Speaker 2: I do not. [00:28:12] Speaker 1: Do you recall that Mr. Lally asked you, you know, to the right would have been toward the driveway side of the property and that you answered that's correct? [00:28:25] Speaker 2: I don't remember the conversation. And again, to the right looking at the house or to the right looking out of the house? [00:28:32] Speaker 1: Well, that's what I'm talking about. To the right looking at the house would be toward the driveway, correct? [00:28:37] Speaker 2: To the right looking at the house would be toward the driveway, correct? [00:28:41] Speaker 1: And that's your testimony where the vehicle started out, correct? And then moved toward the flagpole the second time? [00:28:49] Speaker 2: The vehicle started in front of the house and moved towards the flagpole, correct. So looking out of the house, it moved towards the right. [00:28:59] Speaker 1: Now, excuse me. You told Michael Proctor that initially it was parked closer to the driveway or the mailbox when you first saw it, correct? [00:29:14] Speaker 4: Objection. [00:29:16] Speaker 3: Objection sustained. We were moving off of this, Mr. Okay. Yes, Your Honor. [00:29:24] Speaker 1: Wherever it was when you first saw it, where was the Jeep in relation to that black SUV when you first laid eyes on the black SUV? [00:29:33] Speaker 2: Again, I was focused on the black SUV. My recollection, the Jeep was still in the same spot, which we had pointed out earlier on the exhibit. [00:29:42] Speaker 1: Correct. And in terms of where it was facing, the black SUV was behind, I'm sorry, the Jeep was behind the black. [00:29:47] Speaker 2: Jeep would have been behind the black SUV, correct. [00:29:49] Speaker 1: And wherever it was along that property line, you would agree with me that before the black SUV arrived outside the Albert home, you didn't notice any tire tracks in the snow on the street in front of the house, correct? Before, yes, that's correct. Before the black SUV arrived? Correct. And at all times that you saw the black SUV, first or second, it was always facing toward Chapman Street, correct? [00:30:19] Speaker 2: Yes, that's correct. [00:30:20] Speaker 1: And it was always facing in the same direction that you say that Higgins' Jeep was facing, correct? [00:30:26] Speaker 2: Yes. [00:30:26] Speaker 1: And that would mean that the passenger side of the black SUV was the closest side to the Albert home, correct? Yes. And it was the closest side to you when you were first looking at it, correct? Yes. And now your testimony today is you don't recall if the first time you looked at that black SUV, it was through the front door or if it was through a front window, correct? [00:30:52] Speaker 2: Correct. I don't recall which one I looked out first. I know I looked out both of them at some point. I just don't recall which one was first. [00:30:59] Speaker 1: Whichever one it was, when you first laid eyes on that black SUV, you did not see John O'Keefe in the passenger's seat, correct? [00:31:07] Speaker 2: That is correct. [00:31:09] Speaker 1: How long a span of time was it between the first time you looked out and saw the black SUV and the second time? [00:31:16] Speaker 2: Again, I don't have the exact time. I'm going to guess three, four, five minutes at most. [00:31:22] Speaker 1: And what you did in between those three, four, five minutes was you went back to the table or near the table in the kitchen dining room area where everybody was congregated? [00:31:32] Speaker 2: That's correct. [00:31:33] Speaker 1: And you went back there to talk to people and socialize, correct? [00:31:37] Speaker 2: Yes, that's correct. [00:31:38] Speaker 1: And then you came back to the front of the house and either went to the front window or the front door, and that's when you noticed that the black SUV had moved to the other side of the property, correct? [00:31:49] Speaker 2: Yes, at that moment it had moved to the right of the property. [00:31:53] Speaker 1: It had driven forward, correct? [00:31:54] Speaker 2: I did not see it drive, but it had moved, yes. It had moved forward. So it had to get there somehow, yes. [00:31:59] Speaker 1: It was now closer to the flagpole than it was the first time, correct? That is correct. And the flagpole, as you look at the property, not from your vantage point looking out, but as you look at the property from the street, that would have been to the left, correct? [00:32:13] Speaker 2: Yes. [00:32:14] Speaker 1: And again, it was still facing toward Chapman Street? Yes. In terms of how many times you saw the black SUV having moved outside the house, you would agree with me that you have contradicted yourself about how many times that it moved, correct? No. Yesterday and today you testified that it had been in three different spots and then it was gone, correct? [00:32:40] Speaker 2: Yes. Three times I looked out and saw the SUV. Right. [00:32:43] Speaker 1: And, you know, again, on, in May of 2024, yesterday and today, all three times it moved, it was moving further or farther up Fairview toward Chapman Street, correct? Yes. And in fact, you've testified now in May of 2024 that the third time that you saw it, the black SUV was even past the fire hydrant, just about to the neighbor's property, correct? Yes. But again, your memory of where it was the last time that you saw it, or how many times you saw it, I should say, would have been better on January 29th than today, correct? Again, assumption, yes, I guess it should be. And in fact, when you were talking to Michael Crocker, you had just observed the black SUV just hours before speaking to him, correct? Yes. Not two and a half years before. Right, right? Oh, yes. And when you spoke to Michael Proctor, you told him that you only saw the black SUV in two different spots, correct? [00:33:53] Speaker 2: That's what it says on this paper. My recollection has always been, I saw the black SUV in three different spots. [00:34:01] Speaker 1: And you just called it a paper. It's a police report, correct? [00:34:06] Speaker 3: Jackson. That's the same, Mr. Yonetti. [00:34:10] Speaker 1: Now, since you talked to Michael Proctor on January 29th of 2022, it's fair to say that you've had multiple conversations about this case with your family, correct? Of course, I've talked about this case. That includes in-person conversations, correct? [00:34:27] Speaker 2: With my family? [00:34:28] Speaker 1: Yes. Yes. As well as phone calls and texts? Yes. You've also, since you talked to Michael Proctor, have had multiple conversations about this case with your in-laws, correct? Yes. That also includes in-person conversations, as well as phone calls and texts, correct? [00:34:45] Speaker 2: That is correct. [00:34:46] Speaker 1: And since you gave that statement to Michael Proctor, you've had multiple conversations specifically with Brian Albert, correct? [00:34:53] Speaker 2: Yes. I've talked to Brian Albert. [00:34:55] Speaker 1: That includes in-person phone calls and texts, correct? That is correct. Would you agree with me that in terms of the changes in your version of events from what you've testified during this trial to what is in Michael Proctor's report, you put the SUV farther down Fairview toward Chapman Street now, correct? [00:35:20] Speaker 4: Jackson. [00:35:21] Speaker 1: Distinct. Your testimony during this trial puts the SUV past the fire hydrant almost toward the neighbor's house, correct? [00:35:33] Speaker 2: That is correct. [00:35:37] Speaker 1: But however many times you saw that black SUV, you'd agree with me, you never observed any damage to the rear of that vehicle, correct? Correct. Never saw any damage to the rear right tail light, correct? Correct. You'll also agree with me that every time you saw that black SUV, the vehicle had its headlights on, correct? [00:35:59] Speaker 2: I was looking, as we talked about it moving up the property, I was looking at the back. I could see the back of the SUV. The assumption is the headlights were on, but I wasn't looking at the headlights. [00:36:11] Speaker 1: All right. Well, that would have meant that the area in front of the vehicle was lit up, correct? [00:36:17] Speaker 2: Yes, but like I said, it was further up the road. [00:36:20] Speaker 1: Now, sometime after that black SUV first arrived, you noticed that there were tie tracks, tire tracks, I should say, in a V-shape on the street in front of the Albert Hall, correct? [00:36:32] Speaker 2: That's correct. [00:36:33] Speaker 1: And those tire tracks were from the curb in front of 34 Fairview toward the neighbor's property across the street and then back toward the curb, correct? [00:36:43] Speaker 2: Yes, it came out, waved out towards the, to the cross the street and came back in. All right. [00:36:49] Speaker 1: And the pattern of those tire tracks that you observed were consistent with the vehicle making a three-point turn, correct? [00:36:55] Speaker ?: Objection. [00:36:56] Speaker 3: Can you answer that? [00:36:57] Speaker 2: I don't know if the vehicle made a three-point turn. It could be consistent with because it was a wavy pattern. I don't, I've never looked at a tire tracks after I've done a three-point turn to determine what they actually look like, but in and back out. [00:37:12] Speaker 1: There was nothing about those tire tracks that ruled out a three-point turn to you, correct? No. All right. You didn't see those tire tracks again until the black SUV arrived at the home, correct? [00:37:27] Speaker 2: I didn't, you mean, yes, I didn't see them previous to the black SUV. [00:37:31] Speaker 1: And Higgins' Jeep was already there before the black SUV arrived, correct? Yes. So Higgins' Jeep was already parked and stationary when there were no tire tracks in that area, correct? [00:37:42] Speaker 2: I didn't notice what, I parked my car, we parked in the driveway and I walked in the house, so I wasn't looking at the tire tracks. So, but Higgins' Jeep was already parked. [00:37:52] Speaker 1: Right, right. You didn't see tire tracks at that point, is my point. Yeah, well, I didn't see any. And at the point that you saw those tire tracks, there were no other vehicles in the area along the Albert family property line on Fairview other than Higgins' Jeep and the black SUV, correct? [00:38:09] Speaker 2: That's my recollection, yes. [00:38:11] Speaker 1: Okay, so now we're going to go back to where I had left off with regard to meeting your wife, Jennifer McCabe, in the car after leaving the waterfall. You recall that we sort of left off with you getting in the car and starting to drive home. Yes. Once you got inside the car, your wife ultimately called John O'Keefe along the ride home, correct? [00:38:37] Speaker 2: John O'Keefe had texted my wife and my wife had called him. He was asking where to, I think he was asking for the where to with the address, so she called him to tell him. [00:38:47] Speaker 1: And you knew that he was asking that because the Bluetooth of the car was connected to her phone, correct? [00:38:53] Speaker 2: I believe the Bluetooth was on. Again, I could hear his conversation. [00:38:57] Speaker 1: Yeah. [00:38:57] Speaker 2: My assumption is the Bluetooth was on. Right. [00:38:59] Speaker 1: You could hear both sides of the conversation, correct? [00:39:01] Speaker 2: I could hear John as well, yes. [00:39:02] Speaker 1: Yeah. Your wife and John, correct? [00:39:04] Speaker 2: Yes. I was sitting next to my wife. I could hear her. [00:39:07] Speaker 1: And you heard John tell your wife that he was planning to go to 34 Fairview, correct? [00:39:12] Speaker 2: Yes. [00:39:13] Speaker 1: He had told your wife in your presence that he and Karen would meet your wife and you there, correct? He said, we're on our way. Right. And you knew, again, the plan was to go inside 34 Fairview, correct? [00:39:27] Speaker 2: Yes, that was the plan. [00:39:28] Speaker 1: You heard your wife tell John that 34 Fairview is off Chapman Street, correct? [00:39:34] Speaker 2: Either. I was also talking, so I don't know if my wife was repeating, but yes, we did say off at Chapman Street. [00:39:41] Speaker 1: It could have been you, it could have been your wife, but he was told it was off Chapman Street, right? That's correct, yes. And then your wife hung up with John, at least temporarily, but then John called back, correct? [00:39:54] Speaker 2: Yes, that's correct. [00:39:55] Speaker 1: He indicated he needed more specific directions to 34 Fairview, correct? Yes. And then you heard your wife, or maybe you participated in the conversation. I won't rule that out, but between the two of you, you did give him more specific directions, correct? Yes, we did. And either you or your wife, and you can correct me if you know if it's one or the other, but one of you told him to go down Chapman and take Fairview as if they were going to Bella's house, correct? [00:40:22] Speaker 2: Yes, we had mentioned, go down Chapman to Fairview, you know where Bella lives, drive past Bella's street, the house will come up when you left. [00:40:32] Speaker 1: Right, and I believe you previously explained that Bella was a friend of John's niece, Kaylee, and also your daughter, Olivia, correct? Yes, that's correct. That was a good way to orient him as to where to go, correct? [00:40:43] Speaker 2: Yes. [00:40:43] Speaker 1: And once you did that, John O'Keefe never called back for any clarification, correct? [00:40:48] Speaker 2: Yes, not to my recollection. [00:40:49] Speaker 1: All right, and with regard to your state of mind, based on that conversation and the instructions that either you or your wife or both of you gave John, you certainly assumed that John and Karen would be arriving at Fairview coming from the Chapman Street direction, correct? [00:41:07] Speaker 2: That was my assumption. As I stated yesterday, there's multiple ways to go, but that was my assumption. [00:41:13] Speaker 1: And it was an educated assumption based on the conversation that you had, correct? [00:41:17] Speaker 2: Yes. [00:41:18] Speaker 1: May I approach the witness, Your Honor? Okay. Thank you. I have handed you something. If you could take a look and tell the jury whether you recognize what that depicts. [00:41:37] Speaker 2: Yes, this is a map showing Cedar Crest Road intersecting with Fairview Road. On the opposite side shows Chapman Street intersecting with Fairview, as well as other streets in the, it's called the Cedar Crest neighborhood, in the Cedar Crest neighborhood. [00:41:54] Speaker 1: Okay, and realizing that you don't have a compass or a wall, does it appear to be generally to scale in terms of where the roads are? [00:42:06] Speaker 2: Yes. [00:42:07] Speaker 1: And it appears to be a fair and accurate depiction of the layouts of particularly Cedar Crest, Fairview, and Chapman Street. Yes. Okay. I would offer that, Your Honor. [00:42:17] Speaker 3: Is there any objection? [00:42:19] Speaker 1: No, Your Honor. [00:42:25] Speaker 3: Okay. [00:42:26] Speaker ?: Thank you. [00:42:26] Speaker 1: What is displayed on the screen, Mr. McCabe, does that appear to be what I just showed you in Intivic 88? Yes. You see that there's a red bubble there. Does that have any meaning to you as you look at the map? [00:42:42] Speaker 2: Yes. It would be the location of 34 Fairview. Okay. [00:42:47] Speaker 1: And as we look at the map, Cedar Crest is up the top and Chapman is down the bottom? That is correct. With regard to the directions that you gave, or your wife gave John O'Keefe, if they were coming as you directed them on Chapman Street, would they be taking a right onto Fairview or a left? If they went the way that we mentioned, they'd be taking a left. Okay. So in terms of looking at this map, they'd be traveling on Chapman Street, really from the left to the right, as you look at Exhibit 88, correct? [00:43:26] Speaker 2: Yes. Left to right. [00:43:28] Speaker 1: Correct. And you would agree with me that that would put the driver's side closest to the Albert property, if they just kept going straight all the way to Cedar Crest, correct? Yes. [00:43:46] Speaker 2: The driver's side would have been closest to the property. We can turn the lights back on. [00:43:51] Speaker 1: So you agree with me that your state of mind was that was the direction that they would go? [00:43:56] Speaker 2: That's what I thought they would have how they that's how I thought they would have come into the neighborhood, correct? [00:44:02] Speaker 1: But you never saw the black SUV traveling in that direction or parked in that direction, correct? That's correct. That would mean that in order for the SUV to be facing in the other direction, one way would be for it to make a three point turn, correct? [00:44:22] Speaker 4: Jackson. [00:44:23] Speaker 3: I'll allow it. [00:44:24] Speaker 2: If they, so we're saying if they came down from Chapman and then spun around and facing back up towards Chapman is what you're asking? Yes, at some point she would have had to turn around. [00:44:37] Speaker 1: Or do a three point turn, correct? [00:44:39] Speaker 2: She could do a three point turn or she could just loop around at Cedar Crest and come back up, either one. [00:44:44] Speaker 1: Right. And a three point turn would be consistent with what the V-shaped tire tracks that you saw when you looked at the front of Brian Albert Tubbs, correct? [00:44:53] Speaker 4: Jackson. [00:44:54] Speaker 1: Sustain. When you were interviewed by Michael Proctor on January 29th of 2022, you had not spoken with Ryan Nagel, correct? No. So it's fair to say you did not know what, if anything, Ryan Nagel had seen in terms of how or what direction the black SUV arrived in, correct? Jackson. [00:45:14] Speaker 4: Sustain. [00:45:15] Speaker 1: When you spoke to Michael Proctor on January 29th of 2022, the phone conversation that your wife had with John O'Keefe that you were either participating in or listening to, that was, regarding the directions, that was fresh in your mind on January 29th, correct? Yeah. Those directions had just been given to John, you know, the night before or really hours before, correct? Yes. So, on January 29th, when you're talking to Michael Proctor, believing that John had driven down Chapman Street, you were trying to square, in your own mind, how the vehicle wound up in the other direction when you looked out the house, correct? [00:46:09] Speaker 2: Jackson. [00:46:10] Speaker 1: Who were you? [00:46:11] Speaker 2: Can you just repeat that again? Yeah. I think I heard you. I just want to make sure. [00:46:15] Speaker 1: It wasn't a great question. I'll see if I can make it any better. You're talking with Michael Proctor on January 29th in the afternoon, correct? [00:46:23] Speaker 2: Yes. [00:46:24] Speaker 1: And he's asking you about the positioning of the black SUV, among other things, correct? Yes. And, again, I'm just getting to your state of mind. Your state of mind was that, you know, you gave the direction, you or your wife, gave the directions to John, and you're thinking he came down Chapman, but you never saw the vehicle in that direction. It was only in the other direction facing toward Chapman. Is that fair? Yes. And so you're naturally trying to square in your own mind, trying to make it make sense as to how that happened, correct? [00:47:02] Speaker 4: Jackson. [00:47:03] Speaker 3: You can answer that. Were you trying to square that in your own mind? [00:47:06] Speaker 2: I wasn't trying to, I don't know if I was trying to square it. I just knew that, for some reason, her vehicle was facing up Chapman. Can you ask him? All right. I didn't know what she did. I just know her vehicle was facing up Chapman. [00:47:19] Speaker 1: And to you, that was the significance of the V-shaped tire tracks when you were talking to Proctor, right? Jackson. Was it? [00:47:26] Speaker 2: I, if I recall, I said there was a V-shaped tire tracks, and I believe the question was could it be consistent with a three-point turn? I said it could be. I didn't know if it was a three-point turn. It could be because it was weird tracks. Again, I did not see the vehicle. I don't know if she pulled in the driveway and turned. I don't know if she went to Cedar Chris and turned. I don't know if she did a three-point turn at her. I have no idea. [00:47:50] Speaker 1: All right. But just one last question on this three-point turn. You offered the V-shaped tire tracks as an explanation for what could have happened, correct? [00:47:58] Speaker 2: Jackson. I had stated there was a V-shaped tire tracks. I didn't say it was a three-point turn. [00:48:07] Speaker 1: All right. Well, you'd agree with me in any case that if John and Karen had come from Cedar Chris and you saw them where you saw them, there'd be no need for a three-point turn, correct? [00:48:17] Speaker 2: So you're saying if she didn't come from Chapman, she came from the other side, Cedar Chris, there would be no need for a three-point turn or any type of turn because she was already facing that way. That's right. [00:48:29] Speaker 1: If she came from Cedar Chris, she's already in the very direction that you saw the black SUV when you looked out, correct? Yes, that's correct. Yes, that's correct. Now, your testimony during this trial is that you were looking straight out from the house to the street and, you know, again, I understand your qualification could have been three feet this way or three feet that way, but your memory is that the car was essentially right in front of you, give or take, the first time you saw it. [00:48:55] Speaker 2: My memory is that the car was right in front of the front door. Yes, okay. [00:48:59] Speaker 1: And you were looking straight at it, correct? [00:49:02] Speaker 2: As I had stated earlier, the first time I looked out, I don't recall if I was looking straight out from the front door or if I was peeking out through the window, but it was, my sight would have had it lined up in front of the front door. So, if I looked out from the front door, then it would have been, yes, straight in front of me. [00:49:21] Speaker 1: And you would agree with me that when you were looking at the vehicle from wherever you were looking at it, you were looking straight over the front lawn, correct? [00:49:31] Speaker 2: I was looking over, I would have been looking over the lawn, correct. Again, I was focused on the vehicle. [00:49:37] Speaker 3: Hold on, Mr. Unetti. [00:49:38] Speaker 2: I said I was focused on the vehicle. I was focused. I didn't know that he was not done with his answer. My fault. [00:49:44] Speaker 3: We only can have one person speaking at a time. The court reporter can't be expected to have two different people at the same time. So, please be cautious. [00:49:53] Speaker 1: The lawyer needs to be cautious of that. I will try, Your Honor. Did you get your full answer out, sir? I did. [00:50:01] Speaker ?: Okay. [00:50:02] Speaker 1: You would agree with me that the V-shaped trier tracks were farther away from you than the front lawn? [00:50:10] Speaker 2: Yes, they were on the road. [00:50:12] Speaker 1: And if you were able to clearly see those V-shaped trier tracks, you certainly were able to clearly see the Albert's front lawn, correct? [00:50:21] Speaker 2: As I mentioned, I was looking over the lawn, but I'm assuming the lawn was somehow in my visibility. I wasn't focusing on the lawn. [00:50:30] Speaker 1: Okay. [00:50:31] Speaker ?: Okay. [00:50:31] Speaker 1: I'm going to try that question again and see if I can get a yes or no answer. If you were able to clearly see the V-shaped tire tracks, you were certainly able to clearly see the Albert's front lawn, correct? If I looked at it. [00:50:44] Speaker 2: If I looked at it. It's a confusing question. As I said, I was focused on the road. I wasn't looking at the lawn. [00:50:52] Speaker 1: Come on. Let me be clear. I'm not asking you if you looked at it. I asked if you were able to clearly see it. [00:50:59] Speaker 2: I would be able to, yes. [00:51:01] Speaker 1: And when you looked out at that black SUV and saw the V-shaped tire tracks, you did not see a six-foot-two man lying on the front lawn, correct? [00:51:15] Speaker 2: No, I did not. [00:51:16] Speaker 1: And at no point in time, whenever you looked at that black SUV, did you see John O'Keefe inside the vehicle, correct? [00:51:23] Speaker 2: No, I did not see John in the vehicle. [00:51:26] Speaker 1: At no point in time did you hear any yelling outside 34th Fairview, correct? No, I did not. At no point in time did you hear any scream of pain outside 34th Fairview, correct? No, I didn't. At no point in time did you ever hear any crash noises outside 34th Fairview? Jackson. [00:51:43] Speaker 3: I'll allow it. No. [00:51:45] Speaker 1: And last question on this point. At no point did you hear any noises at all outside 34th Fairview that attracted your attention? [00:51:53] Speaker 2: No, there's music playing in the house, so I didn't hear anything. [00:51:58] Speaker 1: Okay. Now, after being at the Albert home for a period of time early that morning, you left the home approximately 1:40 a.m. or so? [00:52:12] Speaker 2: Yeah, give or take 1:40, 1:45. I don't know the exact time. [00:52:16] Speaker 1: And you walked out with your wife Jennifer McCabe and two of Brian Jr.'s friends, correct? [00:52:22] Speaker 2: Yes, Brian's two friends were joining Jennifer and I, we were driving them home. [00:52:26] Speaker 1: And whether you knew their names or not that night you subsequently learned their names to be Sarah Levinson and Julie Nagel? That's correct. And you all came out of the house together, correct? [00:52:36] Speaker 2: Yeah, I don't recall who was weird when we walked to the car, but we all left the house at the same time. [00:52:47] Speaker 1: And directly in front of all of you was the front lawn, correct? [00:52:51] Speaker 2: If I was to walk straight out the front door, yes, the front lawn's in front of me. [00:52:56] Speaker 1: And when you were walking out, the black SUV was gone, correct? Yes, that's correct. And when you first came out of the house facing that front lawn, you didn't see a black baseball cap, correct? [00:53:08] Speaker 2: That's correct. [00:53:09] Speaker 1: Or a black sneaker, correct? That's correct. Or 45 pieces of red plastic taillight, correct? That's correct. Or even one, correct? That's correct. And once again, you didn't see a six-foot-two man lying on the front lawn, correct? [00:53:22] Speaker 2: No, I wish I did, but I didn't. [00:53:24] Speaker 1: As you were walking out with your wife and these two other women, none of them yelled that they saw anything like that, correct? Correct. And then you all piled into the vehicle which was in the driveway, correct? Yes. You and your wife got into the front driver's seat and the passenger seat, correct? [00:53:46] Speaker 2: Yes, I sat in the driver's seat, my wife was in the passenger seat. I had to brush off the car, but that's where we sat. [00:53:52] Speaker 1: And the other two women who were friends with Brian Jr. got into the second row passenger seat, correct? Yes. And I believe your testimony is you don't know who was where within that, but they did get in there. Yes, they were behind us. [00:54:05] Speaker 2: I don't know who sat in what seat. [00:54:07] Speaker 1: Once you got inside the vehicle, is that when you realized that you had left something back into the house? [00:54:13] Speaker 2: I don't recall leaving something in the house. I'm sorry? I don't recall leaving something in the house. If I did, I did. I don't recall leaving something in the house. [00:54:23] Speaker 1: You don't recall going back into the house? [00:54:25] Speaker 2: No, I don't recall going back into the house. [00:54:29] Speaker 1: If you went back into the house, the front lawn would have been directly in front of you from the driveway, correct? [00:54:42] Speaker 2: The lawn would have been to my left and I would have went up the walkway to the house. [00:54:46] Speaker 1: Right. Okay. Well, that's my next question. When you went up the walkway, the front lawn would have been to your left, right? [00:54:51] Speaker 2: Yes, that's correct. [00:54:52] Speaker 1: And then coming out, you would have had the same view that you had the first time, correct? [00:54:56] Speaker 2: Yes, I would have come back up the same way down the steps to the left. [00:55:00] Speaker 1: And without going through all the various items that I asked you about in terms of not seeing on the front lawn, you know, the speaker, the cap, the tail light, et cetera, you didn't see any of that stuff at any point the second time, correct? Correct. I did not see anything. Okay. So now you're finally back in your vehicle and you are backing out of the driveway, correct? Yes. Is it fair to say that to get to your, well, strikeout, is it fair to say that to drop the women off, your plan was to head toward Chapman Street? [00:55:33] Speaker 2: Yes, that's what we did. [00:55:35] Speaker 1: Which would mean that as you backed out of the driveway, the rear end of your car would have been facing toward Cedar Crest? Correct. And then you would straighten out and now you've got a straight shot up toward Chapman Street, correct? Yes. And it would also mean that you drove the length of the Alberts property, correct? Yes. While you did that, sir, Julie Nagel never said what was that, did she? [00:56:02] Speaker 2: I did not hear Julie say that. [00:56:04] Speaker 1: She never said she had seen a black object, correct? [00:56:08] Speaker 2: I did not hear her say that. [00:56:10] Speaker 1: She never said that she saw a black blob, correct? [00:56:13] Speaker 2: I did not hear her say that. [00:56:14] Speaker 1: And she didn't say that the black blob that she supposedly saw was five or six feet in length, correct? [00:56:21] Speaker 2: Again, I did not hear her say it. [00:56:23] Speaker 1: And she never said that she might have seen a person, correct? [00:56:26] Speaker 2: I did not hear her say it. I did not hear her say it in the car. Correct. Yeah, I did not hear her say it in the car. [00:56:32] Speaker 1: And you were right there driving, correct? [00:56:34] Speaker 2: I was driving, obviously focused on the road. The windshield wipers, it was snowing pretty heavily. [00:56:39] Speaker 1: You didn't have ear pods in. [00:56:41] Speaker 2: I didn't, but they were all talking in the car. [00:56:44] Speaker 1: You didn't have air pods in. No, I didn't. Certainly not the noise cancellation air pods, correct? Correct. I did not have ear pods in. And you never stopped the car because you never heard Julie Nagel say anything about anybody being in trouble, correct? [00:56:59] Speaker 2: I did not hear her say it. [00:57:02] Speaker 1: Okay. You woke up the next morning, as you said, to screaming, correct? [00:57:08] Speaker 2: Yes. [00:57:09] Speaker 1: The screaming was so loud that you thought that the person screaming was actually in your bedroom, correct? That is correct. And it startled you, fair to say? [00:57:22] Speaker 2: Yes, it did. [00:57:24] Speaker 1: And then ultimately, you learned that Karen Reed ended up in your driveway, correct? Yes. You could hear her screaming outside, correct? I could hear her outside, correct? She was hysterical. She was screaming, Jen. [00:57:41] Speaker 2: She just kept repeating Jen. [00:57:43] Speaker 1: In a hysterical manner. Yeah. Jen, Jen. Yes. And she was screaming so loud that she was in danger of waking up the whole neighbourhood, correct? [00:57:53] Speaker 2: She was loud, correct. [00:57:55] Speaker 1: And other than screaming, Jen, Jen, in that hysterical tone, you really couldn't make out her words a lot of the time, correct? [00:58:03] Speaker 2: Not when she was outside my house, no. [00:58:05] Speaker 1: Skipping ahead to when you went back to Fairview that morning, it's fair to say that when you went, did you say that you went inside Fairview at maybe around 7 a.m.? Is that a good estimate? [00:58:20] Speaker 2: Yeah, I don't know the exact time, but it would say, give or take, could be a little before, a little after, but somewhere in that vicinity. [00:58:27] Speaker 1: And I believe you testified that the only people inside that you saw there were your wife, Brian Albert, and Nicole Albert. In addition to officers. At that moment. [00:58:40] Speaker 2: At that moment, that's who I recall seeing there. Okay. [00:58:43] Speaker 1: So there were, and you didn't know where Brian Jr. was, whether he was sleeping, but you didn't see him. I don't recall seeing him at that moment, no. Okay. And Officer Lank was the only police official that you saw inside, correct? At that moment, correct. Okay. Okay. Okay. [00:59:04] Speaker ?: Okay. [00:59:05] Speaker 1: Now, in the days after January 29th, you participated in a group text exchange with three other people. Do you recall that? [00:59:19] Speaker 2: Um, can you name the three people? Sure. [00:59:24] Speaker 1: Uh, you had a group text chat going with your wife, Jennifer McCabe, your brother-in-law, Brian Albert, and your sister-in-law, Nicole Albert, correct? [00:59:33] Speaker 2: Oh, yes. [00:59:34] Speaker 1: Um, I'd like to ask you some questions about that group text chat, if I might. Sure. Um, you would agree with me that on February 1st of 2022, that was three days after John O'Keefe, John O'Keefe passed away, correct? [00:59:54] Speaker 2: Uh, yes. [00:59:56] Speaker 1: And at some point on February 1st of 2022, you were physically either at or near the Albert home at 34 Fairview in Canton, correct? [01:00:09] Speaker 2: I could have been. I don't recall if I was there. [01:00:13] Speaker 1: Do you recall watching what investigators were doing in the neighborhood on February 1st? [01:00:20] Speaker 2: I do not. If you could show it to me, I could maybe reflect my memory. I do not recall that specific day. [01:00:29] Speaker 1: You don't recall monitoring what troopers were doing in the neighborhood? [01:00:33] Speaker 2: I was not monitoring anything that the troopers were doing. If I had driven down the street, dropping someone off, picking somebody up, and saw the troopers, then I saw the troopers. I was not monitoring anything. [01:00:45] Speaker 1: Directing your attention to 1:34 PM and 27 seconds, you texted your wife, Brian Albert and Nicole Albert, quote, Troopers back out front, but in front of Asian house. Did you not? [01:01:05] Speaker 2: If I texted that, you could show it to me. [01:01:09] Speaker ?: May I put you on? [01:01:10] Speaker 1: Yes. [01:01:11] Speaker 3: Thank you. [01:01:12] Speaker 1: I'm showing you a document, sir, and if you look up or look at it by yourself and look up at me when you go. Do you have glasses with you? [01:01:23] Speaker 2: I don't use glasses, but I can't see this, so maybe I need glasses. [01:01:28] Speaker 1: I'm making it out. I got it. [01:01:30] Speaker 2: Is it a light? No, he says he doesn't. [01:01:32] Speaker 3: No, it's not. It's just dark, but I got it. What the hell? [01:01:36] Speaker 2: Who is that? If you're struggling, I do. I'm reading mine, right? [01:01:39] Speaker ?: The middle one? Yeah. Yeah. Yeah. Take all your time. [01:01:44] Speaker 2: I got it. Yep. I see it. [01:01:47] Speaker ?: Okay. If I may just grab that. [01:01:49] Speaker 1: Yes. Thank you. Having reviewed that document, is your memory refreshed? I see that I texted what you said I texted. [01:02:11] Speaker 2: The troopers were outside of the house. Yes. That's my question. [01:02:17] Speaker 1: This is a page that contains the group text that you had with Jen McCabe, Bryan Albert and Nicole Albert, correct? Yes. And in terms of the question that I asked you, you now acknowledge that you testified troopers back out front, but in front of Asian house, correct? That's correct. Mr. McCabe, what is an Asian house? [01:02:46] Speaker 2: The next door neighbors to the Alberts were Asian. [01:02:51] Speaker 1: All right. So you mean that a family of Asian origin lived next door? Yes. They were the next door neighbors to your brother-in-law and sister-in-law? Correct. [01:03:04] Speaker 2: They lived, if you came out of Fairview, they lived to the right of the Alberts. And did you know their last name was the Chung's? I had no idea that I've never met them. I don't know their last names. I just knew it was an Asian family next door. [01:03:18] Speaker 1: And you didn't feel the name, the need to ask their names or try to call them by their names? [01:03:24] Speaker 2: I've never met them, sorry. [01:03:25] Speaker 3: The objections sustained. You know what, Ms. T and Eddie, let's come to sidebar, please. [01:03:29] Speaker 1: When you did tell the group chat about the troopers being at that house, nobody asked you to clarify which house you were talking about, correct? Jackson. I'll allow that. Did anyone ask you to clarify? Nobody asked me to clarify that I recall. In fact, Brian Albert responded with just a question right now. [01:03:53] Speaker 3: Do you recall that? Yes, I think that was on the screen you just showed me. [01:03:55] Speaker 1: And you responded yes, correct? Did I get to see all the text or no? And with the court's permission? [01:04:02] Speaker ?: Yes. I'm going to give you the previous page in case you need. Just give it to him. [01:04:04] Speaker 1: I'm sorry. [01:04:05] Speaker 2: Thank you. Am I to assume? That was on the screen you just showed me. [01:04:08] Speaker 1: That was on the screen you just showed me. And you responded yes, correct? [01:04:11] Speaker 2: Did I get to see all the text or no? [01:04:14] Speaker 1: And with the court's permission, I'm going to give you the previous page in case you need. Just give it to him. I'm sorry. Thank you. [01:04:31] Speaker 2: Am I to assume where you said Brian Albert said right right now? Yes. [01:04:39] Speaker 1: Would you like to see that? [01:04:40] Speaker 2: So would that be the last one and then this is the next one? I'm just making sure. [01:04:45] Speaker 1: I understand. I appreciate that. You tell me. Okay. With the court's permission. [01:04:50] Speaker 2: Thank you. Yep. That's what I was just looking for. [01:04:58] Speaker 1: I may collect the document. [01:05:00] Speaker 2: I didn't read the rest of it. No, no. [01:05:02] Speaker 1: Take your time, please. [01:05:09] Speaker 2: Okay. Thank you. [01:05:11] Speaker ?: Thank you. [01:05:12] Speaker 2: You're welcome. [01:05:13] Speaker 1: You would agree with me that after you told the group in this group text that the troopers were back out front, in front of that house, Brian Albert's response was right now? Yes. And then you said yes, correct? Yes. And then Brian Albert replied, okay, correct? [01:05:39] Speaker 4: objection as of the reading. [01:05:42] Speaker 3: Is that how he replied? That's what it just said. [01:05:46] Speaker 2: Yes. All right. [01:05:48] Speaker 1: Now, at that point, you texted the group that you were trying to get a picture of what you were seeing, correct? I didn't see that on the text. And you don't deny that you said that in the text, correct? [01:06:01] Speaker 2: Can you show me the text, please? [01:06:03] Speaker 1: Oh, sure. Oh, did you say you didn't see it in the text? I didn't see that, no. I'm sorry. I think that's probably because I didn't give it to you. [01:06:14] Speaker 3: Do you have a phone with a flashlight on you? [01:06:17] Speaker 2: I don't have a phone on me. If you have a flashlight, I'll be able to see it. Do you mind? [01:06:21] Speaker 3: Madam Court reporter, Mr. Clerk will, oh, okay. [01:06:36] Speaker 2: Thank you very much. Thanks, Jim. All right. Much better. I got it now. Thanks. [01:06:45] Speaker 1: Having reviewed that, do you acknowledge that you texted the group that you were trying to get a picture of what you were seeing? [01:07:02] Speaker 2: Yes, I said I was going to try to take a photo. All right. [01:07:05] Speaker 1: You would agree with me that you were watching what was going on, correct, on February 1st? [01:07:12] Speaker 2: No, I just happened to be driving through the neighborhood at that moment. [01:07:16] Speaker 1: So you happen to be driving through and then you texted the group to tell them what you saw, correct? Yes. And then you didn't just keep driving up the road and leave the area, did you? I think I did. [01:07:42] Speaker 2: Well? Unless you tell me I went back, I think I did. I said I was going to try to take a picture. Right. Well, that's my point. Yeah. [01:07:48] Speaker 1: You weren't, just having seen the troopers back out there at that house, in your mind, you still weren't done, correct? [01:08:02] Speaker 2: I was going to take a picture to show them, oh, the troopers are outside your house. Right. [01:08:07] Speaker 1: So in answer to my question, you weren't done with that scene, correct? [01:08:11] Speaker 2: I think I was because I don't know if I took a picture. Well -- I think I went through. I was, I mentioned I was going to try to take a picture. That's right. I don't know if I took a picture or not. [01:08:20] Speaker 1: You didn't intend to be done at that point, correct? I didn't intend to be done. [01:08:24] Speaker 2: Right. Because you wanted to take a picture of what was going on. I was going to take a picture to show them that the troopers were outside in front of the house, correct? [01:08:31] Speaker 1: Right. You wanted to continue to monitor what was going on, did you not? [01:08:34] Speaker 2: I was not monitoring what was going on. I just happened to drive by at that moment. [01:08:40] Speaker 1: May we be seen at sidebar? Okay. Mr. McKay, I want to approach this in a little bit of a different way to hopefully make it easier on you and me and the jury. I'd like to hand you, with the court's permission, the four pages that you've already reviewed, just to have you identified as well. Thank you. I'd just like you to take a look at them and just confirm that's what you've already seen before we took the break. [01:09:21] Speaker 2: Yes, these are the ones you showed me earlier. [01:09:23] Speaker 1: Thank you, sir. [01:09:24] Speaker 3: May I approach it? [01:09:25] Speaker ?: Yes. [01:09:26] Speaker 1: Having reviewed those, sir, does this appear to be an accurate transcription of the sequence and the content of the group text chat within that timeframe? Yes. I would offer that, Your Honor. [01:09:41] Speaker 3: All right. The only concern I have is I don't want to give the jury something they need a flashlight to read. [01:09:46] Speaker 1: Well, my next -- [01:09:47] Speaker 3: So, can I see it? Of course. How is your distance vision? [01:09:52] Speaker ?: Are you able to read what's on the screen? I don't know why it's on blue. [01:09:54] Speaker 1: This is -- can I have them in front of me while you're displaying them? Yes. Please. Thank you very much. And feel free to use the flashlight there. Yes. Thank you. [01:10:01] Speaker 2: There we go. [01:10:02] Speaker ?: There we go. [01:10:02] Speaker 2: Oh, yeah. That's much better. Okay. Now we can all see it. With regard to your initial text exchange that we talked about. Can you confirm what you texted at 1:34 in 27 seconds in the afternoon of February 1st of 2022? Yes. Do you want me to see it? [01:10:10] Speaker 3: Can you confirm what you texted at 1:34 in 27 seconds in the afternoon of February 1st of 2022? Yes. [01:10:13] Speaker 2: Do you want me to -- [01:10:14] Speaker 1: Yes. [01:10:15] Speaker ?: Do you want me to -- [01:10:16] Speaker 2: Yes. [01:10:17] Speaker 1: Do you want me to -- Oh. Troop is back out front, but in front of Agent House. Looks like more has been dug up there for at least a few minutes. So we can all see it. With regard to your initial text exchange that we talked about, can you confirm what you texted at 1:34 in 27 seconds in the afternoon of February 1st of 2022? [01:10:38] Speaker 2: Yes. Do you want me to -- Yeah. Oh. Troop is back out front, but in front of Agent House. It has been dug up there for at least -- there or at least looks like it. [01:10:51] Speaker 1: Okay. And Mr. Baker, if you can go down the page to see the responses. And who was it that responded to your notification that the troopers was out that front? [01:11:03] Speaker 2: That would be Brian Albert. [01:11:06] Speaker 1: Brian Albert Sr. [01:11:08] Speaker 2: Yeah. Yep. [01:11:10] Speaker 1: And his response was? [01:11:11] Speaker 2: Right now. [01:11:12] Speaker 1: And that was at 1:34? And 45 seconds? Yes, it was. [01:11:16] Speaker 2: And you took that to be a question, correct? Yeah. [01:11:18] Speaker 1: Asking right now. Yes. And you can move to the next. And you responded to Brian by saying what to his question about right now? [01:11:33] Speaker 2: I responded, yes. And that was at 1:34 p.m. and 56 seconds? Yes. [01:11:36] Speaker 1: You would have still been on scene at that time? [01:11:37] Speaker 2: I'm not sure if I was still on scene, but I was obviously -- it was in the area. It must have been in the area. Correct. [01:11:50] Speaker 1: And the next exchange is it? And who responded to you? [01:11:52] Speaker ?: Brian Albert again. [01:11:53] Speaker 1: And his response was? Okay. You have a memory as to whether or not Brian Albert was on scene at that time or if he was somewhere [01:12:06] Speaker 2: else? I don't have a memory of where Brian was at that time. [01:12:09] Speaker 1: Given the fact that you're saying troopers are up front and he's asking right now -- [01:12:14] Speaker 2: I'd assume he's not -- I'd assume he's somewhere else, yeah. [01:12:19] Speaker 1: And your response to him -- or your response to the group, I should say, was what? [01:12:25] Speaker 2: I had to pick up a car, so I drove through. [01:12:28] Speaker 3: All right. So this is a little further than what we talked about. [01:12:31] Speaker 1: Oh, I know. We're getting to the next one. Okay. Now we're at 1:35 p.m. and 16 seconds, Mr. McKay? [01:12:40] Speaker 2: Yes, that's correct. [01:12:42] Speaker 1: And your text to the group of you, your wife, Brian and Nicole Albert is what? [01:12:51] Speaker 2: Trying to get pictures. [01:12:53] Speaker 1: All right. And at this point, I've asked the next bubble be displayed and then I'm going to skip to the bubble after that once you see it. The next bubble comes from Brian Albert? [01:13:07] Speaker 2: Yes, Brian Albert. All right. [01:13:10] Speaker 1: And that's 1:35 p.m. I'm sorry. [01:13:12] Speaker 3: The screen speaks for itself. If it doesn't, then the witness can. What time is that at? 1:35 p.m. 32. [01:13:17] Speaker 1: All right. And his response, does that appear to be a typo? PK, I'm assuming. [01:13:20] Speaker ?: All right. [01:13:21] Speaker 2: The next bubble after that? And that is from whom? [01:13:24] Speaker 1: Brian Albert. [01:13:25] Speaker ?: All right. All right. All right. And the time there, are you able to make that out? Does that say 1:35 34 or 1:38 34? Whatever it says. [01:13:25] Speaker 1: If you can't see it, you can see it. Next. [01:13:27] Speaker ?: Sure. And his response was? Okay. [01:13:28] Speaker 2: All right. Does that appear to be correcting the PK? [01:13:30] Speaker 1: All right. [01:13:31] Speaker ?: All right. [01:13:31] Speaker 1: All right. [01:13:32] Speaker ?: All right. [01:13:33] Speaker 1: And that is from whom? [01:13:38] Speaker 2: Brian Albert. [01:13:40] Speaker 1: And the time there, are you able to make that out? [01:13:44] Speaker 2: Does that say 1:35:34 or 1:38:34? [01:13:48] Speaker 3: Whatever it says. If you can't see it, you can see it. Next. [01:13:51] Speaker 1: Sure. And his response was? [01:13:54] Speaker 2: Okay. [01:13:55] Speaker 1: Does that appear to be correct in the PK? [01:13:59] Speaker 2: I'd have to go back and... [01:14:01] Speaker 1: The previous one... Next question. Sure. All right. We can take that off one minute. I'd like to just go over two more areas of these group chats with you. You would agree with me that later that same day on February 4th, the four of you, you, your wife, Brian Albert, Nicole Albert, discussed in that group chat the fact that Michael Proctor was talking to Kerry Roberts over the phone, correct? Jackson. [01:14:31] Speaker 4: Jackson, Your Honor. [01:14:32] Speaker 1: Distained. At 3:01 and 48 seconds, you commented on the interview of Michael Proctor with Kerry Roberts. Did you not? Jackson. [01:14:46] Speaker 4: Distained. [01:14:47] Speaker 1: May we be seen? [01:14:48] Speaker 3: So I'd like you to not leave the witness in the dark if there's something that he can have. [01:14:55] Speaker 1: So what I'm going to do now, sir, is to hand you three more pages and ask if you can identify those. [01:15:08] Speaker 3: All right, Mr. McCabe, generally do you recognize those, sir? Yeah. All right, so go ahead. Yep. [01:15:23] Speaker 1: The pages that I've handed to you and that you now have in your possession, those are from the same group chat that you identified earlier, correct? [01:15:32] Speaker 2: Yes, that's correct. [01:15:33] Speaker 1: And it appears to have the same sequence and content of the group chat as well? Yes. [01:15:39] Speaker 3: Over the Commonwealth subjection, again, I'm not sending anything to the jury that they can't read, so let's mock this for identification. [01:15:53] Speaker 1: May that be displayed on? [01:15:57] Speaker 3: May what be displayed? [01:16:00] Speaker 1: The, well, I just stopped that as we said it, and I'm asking- [01:16:03] Speaker 3: And I did not take it in. I said the content on a question by question, so it's each bubble. [01:16:08] Speaker 1: All right. All right. You saw that at 3:01 p.m. and 48 seconds on February 1st that you texted, quote, very weird that she's been barely interviewed. The whole dead comment was just told. I was supposed to have them talk last night and forgot to tell Proctor to call her. Do you recall that? [01:16:30] Speaker 2: I recall it, correct. [01:16:32] Speaker 1: All right. Those were your words, correct? [01:16:34] Speaker 2: Yes, they are. [01:16:35] Speaker 1: May that be displayed? [01:16:36] Speaker 3: No, it's in. We may display it later, but I'd like to move this testimony along, so that's in evidence. [01:16:41] Speaker 1: And then in that discussion, at 3:03 p.m. and 15 seconds, it was Brian Owens. It was Brian Albert who texted, quote, hope they don't think she's making it up after the fact for some reason, end quote. Correct? [01:16:59] Speaker 2: Jackson. I'll allow that. Can you read the timestamp again? It's the second page. [01:17:05] Speaker 1: It's on page 02161. Oh, I found it. Yes. [01:17:08] Speaker 2: It's in the middle. [01:17:09] Speaker 1: I got that timestamp. Correct. Correct. [01:17:12] Speaker 2: 3:03 15. [01:17:13] Speaker 1: Correct. And I read that accurately. Hope they don't think she's making it up after the fact. [01:17:18] Speaker 2: Yes, that's correct. [01:17:20] Speaker 1: And then, less than a minute later, at 3:05 and 32 seconds, you replied, yes, she was hardly interviewed, and I think just answered what was asked. Oh, I'm sorry. Strike that. Strike that whole question. I skipped his next response, which was at 3:05 and two seconds, where he said, but if they barely interviewed her, that's on them. Correct? [01:17:50] Speaker 2: That's from, yeah, from Brian. Yes, that's correct. Okay. [01:17:55] Speaker 1: Now, with regard to that exchange, you would agree with me that you were talking about Kerry Roberts being interviewed by Michael Proctor, correct? [01:18:05] Speaker 2: I don't want to make an assumption. Do you have the text previous to this that shows that we're referencing Kerry? [01:18:11] Speaker 1: I do, and I'll show you that only to refresh your memory. [01:18:14] Speaker 2: Yeah, I just, I don't want to assume something. [01:18:17] Speaker 1: I understand. I'm going to show you one page, and ask you to look at it silently to yourself. [01:18:23] Speaker 2: Okay. Yeah, again, my assumption is Kerry based. Can I go back another page? Feel free. Okay, that's what I was looking for. [01:18:45] Speaker 3: Yes. [01:18:48] Speaker ?: Thank you. [01:18:49] Speaker 1: Did those previous pages reflect your memory about the context of your group chat conversation? Yes, it did. And certainly it was talking about Kerry Roberts being interviewed, correct? Yes, it was. And you were passing along information about that interview to Brian Albert, were you not? [01:19:05] Speaker 2: Yes, I was letting him know that Kerry was being interviewed. [01:19:12] Speaker 1: And you were telling him things that she was saying, correct? - Remember you said the whole dead comment was just told? [01:19:26] Speaker 4: - Jackson, Your Honor. [01:19:27] Speaker 1: - Sustained. - All right, in any case, we're gonna move on to the very last discussion that I'd like to ask you about. Earlier that day, February 1st of 2022, at 12:50 p.m. and 37 seconds, Brian Albert texted the group, which would have again been his wife, Nicole, your wife, Jennifer, and you. And that text was-- [01:19:59] Speaker 4: - Jackson, Your Honor. [01:20:00] Speaker 3: - Okay, so I can't, which bubble on which page? [01:20:04] Speaker 1: - 02148. [01:20:06] Speaker 3: - Right, on which page? [01:20:08] Speaker 1: - That's the page, 02148. [01:20:11] Speaker 3: - No, all right, I'll hear you at sidebar. [01:20:16] Speaker 1: The court is back in session, please be seated. [01:20:22] Speaker 3: - Christian Eddie. [01:20:23] Speaker 1: - Thank you, Your Honor. Mr. McCabe, when we broke, I was just about to ask you about those, the last exchange here. You will agree with me that on February 1st of 2022, at 12:51 and 49 seconds, you texted the group chat to say, ask Chris to ask some questions, correct? [01:20:52] Speaker 2: - Yup, I'm reading it right now, yes, that's correct. [01:20:58] Speaker 1: - And who was the Chris you were referring to? [01:21:01] Speaker 2: - That would be Chris Albert. [01:21:04] Speaker 1: - Brian's brother, correct? [01:21:05] Speaker 2: - That is correct. [01:21:07] Speaker 1: - And then you then texted your wife, Brian Albert, and Nicole Albert, quote, tell them the guy never went in the house, correct? [01:21:22] Speaker 2: - That's part of the same text, yes. [01:21:25] Speaker 1: - Mr. McCabe, who was the guy that you were referring to? Does he have a name? [01:21:29] Speaker 2: - That would be John, John O'Keefe. [01:21:33] Speaker 1: - When you told the group to tell them the guy never went in the house, that was you talking about how you should all get your stories straight, correct? [01:21:44] Speaker 2: - No. [01:21:46] Speaker 1: - You would agree with me that your stories are all straight in terms of the guy never went in the house, correct? [01:21:52] Speaker 2: - Objection. [01:21:53] Speaker 1: - Can you answer that? [01:21:54] Speaker 2: - John never went in the house. - It's not a story, it's a fact. [01:21:59] Speaker 1: - Well, when you said, tell them the guy never went in the house, Brian Albert was on that exchange still, was he not? He was still part of the group text? [01:22:12] Speaker 2: - Yes, Brian is on the exchange. [01:22:14] Speaker 1: - And Brian Albert was the one to respond, wasn't he? - Let me switch pages here. - He responded, did he not? - Yes, he did. - And then at that point you knew Brian Albert was the oldest brother of the Albert family, correct? - Yes, that's correct. - The oldest sibling in that family, correct? [01:22:38] Speaker 2: - Yes, that's correct. [01:22:41] Speaker 1: - And in his response to your instructions that his younger brother, Chris, should say that John O'Keefe never went in the house or the guy never went in the house, you would agree with me that he responded with one word, correct? - Yes, he did. - And in response to you saying the guy never went in the house, Brian Albert's response was, exactly, correct? - Yes, that's his response. - All right, we're done here. - All right, Commonwealth, any redirect? [01:23:18] Speaker 2: - Just briefly, Your Honor. - Now, Mr. Bacay, John O'Keefe never went in the house that night, is that correct? - That's correct. [01:23:22] Speaker 4: - And from this text communication, as far as Chris Albert was concerned, was Chris Albert whatever at the house on that night? [01:23:49] Speaker 2: - No, he was not. [01:23:51] Speaker 4: - And this is something that you obviously, death of John O'Keefe occurring, how it did, where it did, and why it did? That was something that you discussed. [01:24:01] Speaker 3: - Can you keep your voice up? - Yes, I'm sorry. [01:24:03] Speaker 4: This tragic occurrence, as far as what happened to John O'Keefe, his death, where, why, how, that was something that you discussed within your family, is that right? - Yes, that's correct. [01:24:13] Speaker 2: - And what? [01:24:14] Speaker 4: - I didn't hear that one. - Why was it a discussion in your family? [01:24:18] Speaker 2: - You're talking about the immediate, immediately after? No one knew what happened. John never showed, never came in the house. So we had no idea what happened to John. [01:24:29] Speaker 4: - And John was someone you were friends with, correct? [01:24:33] Speaker 2: - Yes, that's correct. [01:24:35] Speaker 4: - Now, did you ever tell anybody what to say at any point in time to the state police, to any investigator whatsoever? - No. - Did anyone in your family or in your presence ever tell anyone that in front of you? - No. [01:24:49] Speaker 2: - No. [01:24:50] Speaker 4: - Now, you asked some questions about when you were looking out and you saw the SUV, correct? - Yes. - And your focus, as you indicated in your testimony, was on the SUV, correct? - Yes, that's correct. - Now, during the time that you were looking out, did you ever see a pickup truck outside? [01:25:09] Speaker 2: - I knew the pickup truck was out there, but again, I didn't look at the pickup. I kind of saw what was focusing on the SUV. I saw a vehicle out there, let's say that. [01:25:21] Speaker 4: - My question is more so, as far as the tire marks that you were talking about in the road, was that before or after the pickup truck was there? [01:25:28] Speaker 2: - It was after. [01:25:29] Speaker 4: - Now, you were asking questions about directionality and things of that nature, as far as coming down Chapman or Cedar Crest, correct? - Yes, that's correct. - And so if someone had driven by the house, missed the house, and then went on to Cedar Crest, turned around, presumably then they would be taking a left or a right from Cedar Crest onto Fairview, is that right? [01:25:52] Speaker 2: - Yes, if they passed the house, they would have come to Cedar Crest and turned around and come back onto Fairview. [01:25:59] Speaker 4: - And you were asking questions about whether or not you saw Mr. O'Keefe from your vantage point in the SUV, is that correct? [01:26:05] Speaker 2: - Yes, I was. [01:26:06] Speaker 4: - And you didn't see him, correct? - I did not see him. - Would you see anyone inside from where you were? [01:26:10] Speaker 2: - I could not see anybody in the vehicle. [01:26:12] Speaker 4: - Do you see anything about the windows as far as their tint or anything like that? [01:26:16] Speaker 2: - I don't recall the tint. I couldn't see inside, though. [01:26:19] Speaker 4: - As far as any statements that Ms. Nagel made on the way home, is it your testimony that Ms. Nagel didn't say those statements or that you didn't hear those statements? - Now, turning to February 1st, do you recall what you were doing on that day when you drove by Fairview? [01:26:40] Speaker 2: - I don't recall what I was doing. I don't recall exactly what I did that day. [01:26:46] Speaker 4: - And were you going specifically by Fairview or where were you? [01:26:52] Speaker 2: - Based off of reading these text messages, I was doing something, picking up a car or something. It says, I don't recall where. And I cut down Fairview. [01:27:01] Speaker 4: - Now, as far as your statement in those text messages where you said, looks like more has been dug up. Do you recall that? [01:27:08] Speaker 2: - I don't recall it. I read it in the text message. [01:27:11] Speaker 4: - Do you recall what that was in regard to? As far as what were they digging? [01:27:18] Speaker 2: - Oh, oh, oh, sorry. I do recall. They dug out the snow. It looked like the snow banks. It looked like there was more snow dug out in the, in the, in the, around the, um, the, around the scene. [01:27:30] Speaker 4: - And by the scene, you mean around where the black hole fire after that was? - Correct. Yes. - And do you recall any sort of change in the weather between the 29th and February 1st? [01:27:40] Speaker 2: - I believe the, if the temperature rose, snow was starting to melt, if I recall. [01:27:47] Speaker 4: - Now, when you and your wife, uh, were, uh, your wife was talking to, uh, to Mr. O'Keefe and you were given directions, there was some reference to, uh, Bellesense, correct? [01:27:58] Speaker 2: - Yes, that's correct. [01:28:00] Speaker 4: - And that was sort of used as a, uh, directionality as far as Mr. O'Keefe was concerned. - As far as Mr. O'Keefe would be familiar with where Bella's house was? [01:28:07] Speaker 2: - Yes, that's correct. [01:28:08] Speaker 4: - What if any relationship, uh, in the past were you aware of between Mr. O'Keefe and Bella, and Bella's mother? [01:28:14] Speaker 2: - Um, at some point, uh, Bella's parents were, were separated, uh, since divorced, um, at some point, uh, Mr. O'Keefe had a relationship with Bella's mother. [01:28:27] Speaker 4: - And after that conversation in which, uh, that was referenced as far as, uh, Bella's house, did you ever hear from John O'Keefe again? - Never heard from him again. [01:28:36] Speaker 2: - Up and further. - Anything? [01:28:38] Speaker 4: - Just very briefly. [01:28:39] Speaker 1: - Okay. - Um, you would just ask if you ever told anyone, I'm sorry, if you told anyone what to tell the state police or investigators, and your answer was no, correct? [01:28:52] Speaker 2: - Yeah, I don't, I don't recall telling anyone to tell anybody anything. [01:28:56] Speaker 1: - So, with regard to your statement, tell them the guy never went in the house, who's the them? [01:29:03] Speaker 2: - Do you mind if I go back and read? [01:29:05] Speaker 1: - Take your time. [01:29:07] Speaker 2: - I think I know, I just want to read it. The them was channel four went into D and E. [01:29:21] Speaker 1: - Are you done with your answer? [01:29:24] Speaker 2: - Yeah, you just asked me who the them was. [01:29:26] Speaker 1: - And the answer is, you were instructing people on the group chat to tell channel four that the guy never went in the house, correct? [01:29:33] Speaker 2: - Yes, this was on February 1st. As I said, none of us in the house had any idea what happened to John O'Keefe. So we instructed to, I was saying, we don't know what happened. He never came in the house. That's what was my statement was. [01:29:50] Speaker 1: - Sir, I didn't ask you for any of that just now, did I? [01:29:54] Speaker 2: - You just asked me why I said that. [01:29:56] Speaker 1: - No, I asked you who the them was. - Jackson, Your Honor. [01:29:59] Speaker 2: - You didn't. You looked like you asked me to elaborate. [01:30:02] Speaker 1: Okay, so your answer to my question is, the them was you were saying that channel four should be told that the guy never went in the house. [01:30:14] Speaker 2: Yes or no? - Channel four was who I was referencing. Yes. [01:30:20] Speaker 3: - No further question. - All right, you are all set, Mr. McCabe. I will take those documents. - Thank you very much. - You're welcome. [01:30:28] Speaker 4: - Yes. [01:30:29] Speaker ?: - Okay. - Thank you.