Ryan Kelly — Direct
148 linesMONDAY, FEBRUARY 13, 2023
(Court resumed at 9:47 a.m.)
JUDGE NEWMAN: Good morning.
(Audience responded good morning.)
JUDGE NEWMAN: We have some matters with the jury, with two jurors who have tested positive for Covid, and they will not be able to be continued -- to, to continue. They've confirmed the positive test by sending them to the Clerk of Court, who's for -- who has forwarded a copy -- copies to me. And I've spoken with each of those jurors and they are -- one is symptomatic, and one had a cough and sore throat, and they've both been released. So, we have two alternates, two other jurors -- two other -- yeah, we have two alternates that will become part of the regular panel, so we'll need to do that this morning. Any comment?
MR. HARPOOTLIAN: Your Honor, and I with great consternation, having just gotten over Covid myself over the Christmas holidays and doing a little studying on it, my understanding is that if you've been exposed to somebody with Covid, it can be up to five days before you exhibit symptoms. My only concern, my only concern is that we don't create a train wreck with this jury testing negative now, and in abundance of caution should we not, I hate to use the word delay but that's what it will be, until some health professional will tell us if they were exposed. Last Friday when they were together, they would show symptoms or test positive by Tuesday or Wednesday. I mean, I'm not trying to -- trust me --
JUDGE NEWMAN: I understand.
MR. HARPOOTLIAN: -- it's an economic disaster for us.
JUDGE NEWMAN: Well, we've had a doctor who came and tested them this morning and who recommended that they be tested again on Wednesday.
MR. HARPOOTLIAN: So --
JUDGE NEWMAN: And she is a doctor who fully understands the CDC guidelines and other precautions, and so your concern is being addressed by the Court.
MR. HARPOOTLIAN: Are you going to keep them together until now and Wednesday?
JUDGE NEWMAN: Yes, and we've recommended that they -- and they've agreed to wear masks, as everyone in here probably should other than the essential people who have to talk all the time. But my focus primarily is with the jurors. Of course our camera person, I notice they tend to wear masks and most others do not, some clerk personnel. Yes, sir?
MR. HARPOOTLIAN: Your Honor, my only other concern is -- well, I understand the Clerk of Court is now out with a Covid --
JUDGE NEWMAN: Yes.
MR. HARPOOTLIAN: And one of her --
JUDGE NEWMAN: And her staff -- her staff, they've been tested and they're all negative.
MR. HARPOOTLIAN: I don't know what to say. I want to make sure that his -- as you do, that this jury does not infect each other and then we're in, you know, a position --
JUDGE NEWMAN: Yeah, or infect me or you. We all have that same concern, and the jurors are aware of that and they have a positive attitude about it, and -- according to the doctor who administered the test to them this morning.
MR. HARPOOTLIAN: The last question, do you have masks? I didn't bring a mask.
JUDGE NEWMAN: I do. I have one right here, and I have -- my clerk has one right there, and we have a few others in the back. You're welcome to have one of them if you want, would like to have it. The clerk's staff, she's going somewhere --
MR. HARPOOTLIAN: Thank you, Your Honor.
JUDGE NEWMAN: -- heading toward masks or something.
MR. HARPOOTLIAN: We're good, Your Honor, thank you.
JUDGE NEWMAN: All right. Mr. Waters?
MR. WATERS: Yeah. I was going to echo the same concern, you know, that we have two who were released and then we have it kind of spread through those that are remaining if, you know -- and again, this is not what I want to do at all, if there's some sort of delay to see what happens because I didn't -- in talking with the defense as we first heard about these issues, I think we were both in agreement that we would rather, if forced to, delay a little bit rather than end up with a mistrial and be unable to continue at all, and that would just be my only -- my only point that I would raise at this time. And, you know, we could have two if we go ahead and release them, and we could have some others become symptomatic and we would just have to, you know, wait a few days for it to run its course. But that's -- that would be my only thought or recommendation, but obviously you've had a doctor come in here and discuss a course of action.
MR. HARPOOTLIAN: And, Your Honor, we would concur that -- and again, trust me, I'm not interested in delaying this at all, but what I don't want is to run the risk that we have a mistrial because they all get Covid, or they all get symptomatic. It just seems to me if by Wednesday they know it might be prudent to adjourn for a couple of days. And I'm not questioning your decision.
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: I'm just concerned that we not -- and if they have masks on, that's great, but when they go back in the jury room and drink the water or have lunch or whatever they're going to do, they'll have those masks off. It's not 100 percent. I caught Covid the first week of -- the second week of December. It took me three weeks to get over it, and I don't want to lose this jury.
JUDGE NEWMAN: Yes, sir?
MR. WATERS: We don't want to either. And, again, if we were going to do that, I would say that the two that have tested positive, we would, you know, at least keep them in the bullpen, I guess, until we figure that out or see what happens.
JUDGE NEWMAN: No, they're not in the bullpen. The two with Covid that have been released --
MR. WATERS: Oh, they have been released? Okay.
MR. HARPOOTLIAN: No objection.
JUDGE NEWMAN: -- from jury service. And here are your -- the masks here, it's right behind you there.
(Break in proceedings.)
JUDGE NEWMAN: Fortunately we have -- we selected, wisely selected six alternates, and we'll be down to five or four, four following --
MR. HARPOOTLIAN: No, three.
MR. WATERS: Three?
JUDGE NEWMAN: Three following the release of these two. And, of course, we have no way of knowing. We just have to take precautions as we all do as we navigate through life during this period of time. And we need twelve to deliberate, so that's the goal. That's why you have alternates. Of course, any time you have a trial that's protracted with -- that goes on and on and on, then you run the natural risk of attrition, which we are experiencing now, and be it Covid or some other problem, the longer -- the longer we stay here, the longer something will happen to various folks involved.
MR. HARPOOTLIAN: Your Honor, all I can say about how long it's going on, I'm reminded a quote from the Jerry Spence, a dangerous trial lawyer in Silkwood in that case, which went not much longer than we are. He says we began this trial in winter; we finished it in spring. I thought we would grow old together. So, I'm beginning to feel much like Mr. Spence. But hopefully we can finish the State's case this week and we can begin our case.
JUDGE NEWMAN: Yes. With regard to selection of the next two jurors to become part of the twelve, the clerk has placed the juror numbers of the remaining jurors in a box, and the statute requires that they be selected -- I think the words are -- the words by lottery. Any objection to a clerk -- member of the clerk staff selecting the next two?
MR. WATERS: No objection, Your Honor.
MR. HARPOOTLIAN: No objection, Your Honor.
(Break in proceedings.)
JUDGE NEWMAN: All right, if you will pull number one, Madame Clerk. All right. You can tell us what juror number it is.
COURT CLERK: Juror number 441.
JUDGE NEWMAN: Number 441 becomes a member of the regular panel. And the next one?
COURT CLERK: Juror 326.
JUDGE NEWMAN: Number 326 will become --
MR. HARPOOTLIAN: Your Honor, can we inquire what -- the juror numbers of those excused?
JUDGE NEWMAN: Yes, of course. The two jurors who now have been excused, Juror 220.
MR. HARPOOTLIAN: 220.
JUDGE NEWMAN: Is that correct, Madame Clerk?
COURT CLERK: Yes, sir.
JUDGE NEWMAN: 220, and 528.
MR. HARPOOTLIAN: 528.
COURT CLERK: Yes, sir.
(Break in proceedings.)
MR. HARPOOTLIAN: Your Honor.
JUDGE NEWMAN: Yes, sir?
MR. HARPOOTLIAN: Mr. Waters and I were opining as this develops, and I'm not trying -- it's a joint concern. We have a huge gallery out here. Are we exposing ourselves to more risk by having them there?
JUDGE NEWMAN: Probably so.
MR. HARPOOTLIAN: Having brought that to your attention --
JUDGE NEWMAN: Well, do you -- would you like me to issue a mask mandate for everyone in the courtroom other than witnesses who are testifying and people who have to speak openly in court, like the judge and lawyers?
MR. HARPOOTLIAN: Yes, sir.
MR. WATERS: Well, and aside from a mask mandate, you might, you know, have a little bit of social distancing. A little less numbers might be warranted. I mean, none of us want to limit anything, but we're in a different paradigm, and both of us have a concern about getting this thing to the end without Covid causing any problems. That's the paramount concern for both the State and the defendant.
MR. HARPOOTLIAN: And, Your Honor, half our alternates are gone now.
JUDGE NEWMAN: Sir?
MR. HARPOOTLIAN: Half our alternates are gone. We're three weeks in and three jurors down.
JUDGE NEWMAN: Right.
MR. HARPOOTLIAN: At this rate we could have a problem.
MR. WATERS: Maybe we need to have somebody doing the little thermometer thing at the door.
JUDGE NEWMAN: All right. We'll leave all that with the clerk staff. They are able to monitor that, I believe. I'm not going to order any social distancing. We cannot order any social distancing with the jurors. Of course, when Covid came in initially, we reversed the courtroom and had the jurors seated in the audience and that was our means of keeping them socially distanced. I don't think we can require masks because people in the audience are here for the most part of their own volition, and they can watch it all on TV if they do not wish to wear masks. But I'm not going to order any social distancing. And for the moment, we're going to encourage everyone here to mask up for your own protection, as well as the protection of these proceedings and of each other, and then we'll explore how far we need to go with that as the day progresses. Otherwise, is there anything else before the jury comes?
MR. WATERS: Your Honor, one other matter. And I -- just to let you know, there were some developments over the weekend. The -- back in March of 2022, there had been search warrants prior to that issued to GM, and in particular for OnStar data. And in March of 2022, GM sent a letter to law enforcement, to SLED, in which they advised, aside from some basic sort of ownership information and that sort of thing, that they had no data. Late Friday after court, Friday evening, I got a call from John Conrad, who, of course, is Your Honor is aware, has been handling a lot of that digital evidence. We received a communication from GM stating that, probably because the trial is going on and maybe in response somebody was watching the testimony of Falkofske, that they had gone back and looked again, and this time they found a lot of data that includes GPS location data from the Suburban that the defendant had on June 7, 2021.
That information came in Saturday evening, and I had a chance, of course, to look at it Sunday morning. I immediately called Mr. Griffin and we talked, and we provided that information to them. And so that information came in. Of course, when we became aware of it, GM actually sent a letter with it saying yeah, we told you back in March we didn't have anything and we just found it, and here you go, and so we've actually had that data and provided it to the defense. Obviously we'll let the defense speak for themselves, but we've done everything to facilitate their review of it. If anything, I think it confirms a lot about the timeline that we're both working within, so I don't know that they have any objection about that, and we're just trying to absorb it on the fly, and it's a substantial amount of information. But I wanted to raise that to the Court's attention and of those information, and, of course, let the defense speak for themselves.
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: Your Honor, again, it is a massive amount of data which we forwarded to our experts yesterday, last night. They're beginning to look through it. Some of it is very helpful to us. We don't see it in any way contradicting the State's previous timeline. But the data can show you car speed, it can show you GPS, exactly where they were. It can show, you know, just many, many, many things that we did not have before. And, again, this is not about who didn't do what and when. GM concedes they didn't give it. The problem is they're -- it's not a problem. They're going to bring somebody from GM to authenticate it, as I understand it, and then give it to their expert who they were going to use for a timeline anyway and have him or her digest it. We will not be able to cross-examine their expert until our experts have a chance to digest it on a granular level. I'm just giving the Court a heads up. We got it to him yesterday. We suspect it's going to take them two or three days to do that, and so I know we're talking about -- telling us they'll rest their case by Wednesday, and we're going to try to get ready by Wednesday, but I can't guarantee that. I mean, again, we just got it yesterday. So, the only hang up, once they authenticate it, before we cross-examine their expert, we need an opportunity to have our experts advise us what, if anything, we need to ask them. I mean, that's just, you know, how is works.
MR. WATERS: And, Your Honor, just to be clear about this particular data, there's two sets of data. The most important data to what we're doing -- and again, it's confirmed by the timeline. It's just actually confirmatory of the timeline that we've been presenting to this jury, but we have specific location data, data points that are being logged every, you know, 30 seconds or so, or something like that, as well as vehicle speed. That's the crucial data that's in this for the relevant time period. There's another file that has some various sensor data that's logged, but in our initial review, I don't think there's going to be anything in that information that's going to be helpful to either side. We have -- I actually was talking with the defense counsel earlier, and they were able to load already, because I was going to suggest they do this. Load that location data into Google Earth and it works pretty well. So, I think it's something that's going to be able to be digested fairly quickly, and at least in our review it does not appear that there's any information in there that's different than the timelines that we were already working from. It's just much more specific and confirmatory of what had already been established.
MR. HARPOOTLIAN: Your Honor, with all due respect to Mr. Waters, his opinion on what's important to us is not -- if we find things in that other data he talks about that's not relevant or not -- or something not of interest to them that is of interest to us, experts -- it can't load it into Google Earth. You have to do some things with it to get it in a position. I mean, Mr. Barber, who's our computer whiz kid, was able to do the Google stuff yesterday and indicates that other materials -- the car function. Are the doors locked? Are they unlocked? Is it in gear? Is it not in gear? And the information about other functions of the vehicle, it's just amazing what they captured. I mean, it's scary because they know everything about how you're operating your vehicle. And speed, where you are, all those sorts of things. We're getting that and our experts are downloading it. We think there's some relevance to the other databases, but we can't -- I can't represent to you here today that it is or isn't, but we have a seen a couple of things we think could be very helpful to our case. So, all I'm saying, all I'm attempting to do -- and let me make this clear. There's nothing -- we're not implying in any way that the State did anything untoward here. I want to make that perfectly clear. Now, GM after all the money we gave them to bail them out couldn't get this done. That may be another matter altogether. And somebody must have been watching the trial because between the time the FBI agent testified -- and they got the data in less than two days, as I understand it. So, somebody hit a button and generated that data in less than 48 hours, so it wasn't hard to access.
JUDGE NEWMAN: Right.
MR. HARPOOTLIAN: Again, not -- the State has nothing to do with this delay. I just wanted to raise with the Court before they call their timeline expert, we may need some period of time to get our experts to get it digested and then back to us.
JUDGE NEWMAN: Well, at its core it's an unexpected witness coming into the trial. I know there are -- there have been some cross-examination on that issue in general, so the State has now disclosed an additional witness, and certainly in fairness to the defense he should have an opportunity to adequately prepare to confront that witness, if need be. And I'm sure that witness is down the line, you know, not the next witness the State is calling since the State indicated that you expected to be through on Wednesday, and that did not include this witness. So, you must have other witnesses in your -- that you should be ready to proceed with, and we'll deal with the other issue as it might come up.
MR. HARPOOTLIAN: And, Your Honor, we'll keep you posted.
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: You know, we're in court from 9:30, don't get back until 6:00 or 6:30, and be able to talk to the experts, so we're going to have to talk to them tonight, but, again, we're somewhat strained as to how much discussions we can have and what time.
JUDGE NEWMAN: Understood.
MR. HARPOOTLIAN: Thank you.
MR. WATERS: And, Your Honor, again we're having to digest it as well, but it's going to be incorporated in our timeline witness, who is expected to be called either tomorrow or Wednesday.
JUDGE NEWMAN: All right. Anything else before the jury comes?
MR. WATERS: Nothing from the State, Your Honor.
MR. HARPOOTLIAN: Nothing from the defense, Your Honor.
JUDGE NEWMAN: All right. Let's bring the jury.
(The jury returned to the courtroom.)
COURT BAILIFF: The jury is present, sir.
JUDGE NEWMAN: All right, very good. Good morning.
(Jurors responded good morning.)
JUDGE NEWMAN: Day number sixteen. Ladies and gentlemen, you might notice that a few of your jurors are missing. Those jurors have been excused. I see many of you are masked up, but we -- hopefully we'll
JUDGE NEWMAN: do everything we can to keep everyone safe, including members of the Court. I'm not going to order any wearing of masks by jurors but encourage it. But we have excused two jurors and now have two other jurors who will move up to be among the first twelve jurors, and that means we'll have two, four, six, eight, ten, twelve, fourteen, so three extra, three alternates remaining. So, Juror Number 441. Who is 441? All right. 441, you are a member of the first twelve. And Juror Number 326? 326, you're a member of the first twelve. Of course, it doesn't matter where you sit. You just need to know that. And with that, we are ready to move forward. State's case, next witness.
MR. WATERS: Thank you.
MS. GOUDE: State calls Ryan Kelly.
The witness, RYAN KELLY, was first duly sworn and testified as follows:
COURT CLERK: Thank you. Take a seat in the witness stand. You can adjust the mic if you have to. State your name again for the record and spell your last name.
RYAN KELLY: Ryan Kelly, K-e-l-l-y.
MS. GOUDE: And, Your Honor, for the record, we are calling Agent Kelly for limited purposes this morning.
JUDGE NEWMAN: Yes, ma'am.
DIRECT EXAMINATION
BY MS. GOUDE:
MS. GOUDE: Agent Kelly, could you please tell the jurors where you work?
RYAN KELLY: I am a special agent with the South Carolina Law Enforcement Division, SLED.
MS. GOUDE: And what is your position at SLED?
RYAN KELLY: I'm a senior special agent.
MS. GOUDE: And in your position as a Senior Special Agent, were you involved in the investigation into the deaths of Paul and Maggie Murdaugh?
RYAN KELLY: Yes, ma'am, I was.
MS. GOUDE: I'm going to ask you to take a look at some exhibits here. State's Exhibit 464.
RYAN KELLY: Yes, ma'am.
MS. GOUDE: Could you tell us what that is?
RYAN KELLY: These are the buccal swabs of Phillip Beach, Renee Beach, Robin Beach, and John Murdaugh.
MS. GOUDE: And State's 465?
RYAN KELLY: These are the buccal swabs of Ronald Freeman. Let's see --
MS. GOUDE: 466?
RYAN KELLY: The buccal swab of Michael List.
MS. GOUDE: 467?
RYAN KELLY: Buccal swab of Matthew Loose.
MS. GOUDE: And 468?
RYAN KELLY: It's a buccal swab. I'm trying to see here. It's a buccal swab of Curtis Smith.
MS. GOUDE: Okay, and, Agent Kelly, who collected those buccal swabs?
RYAN KELLY: I did.
MS. GOUDE: Okay, and how did you collect them?
RYAN KELLY: We have a process where we put on rubber gloves and we have Q-tips that are sealed. We beak the packaging, unseal the Q-tip. We insert one Q-tip into the side of their cheek and we obtain a buccal swab sample. We then remove the Q-tip, seal it in an envelope, seal the envelope. We then take the second Q-tip which is in the packet. We break the seal, insert it into the other cheek where we swab. That Q-tip is then secured into a sealed envelope, and then the two separate sealed envelopes are then placed into a third envelope, where it's sealed, and signed, and initialed on the seal.
MS. GOUDE: And you did that with each of these buccal swabs?
RYAN KELLY: Yes, ma'am, I did.
MS. GOUDE: Your Honor, at this time the State would move to admit State's Exhibits 464, 465, 466, 467, and 468.
JUDGE NEWMAN: What says the defense?
MR. GRIFFIN: No objection, Your Honor.
JUDGE NEWMAN: They are admitted.
(BUCCAL SWAB MARKED AS STATE'S EXHIBIT NUMBER 464 WAS RECEIVED INTO EVIDENCE.)
(BUCCAL SWABS MARKED AS STATE'S EXHIBIT NUMBER 465 WERE RECEIVED INTO EVIDENCE.)
(BUCCAL SWABS MARKED AS STATE'S EXHIBIT NUMBER 466 WERE RECEIVED INTO EVIDENCE.)
(BUCCAL SWABS MARKED AS STATE'S EXHIBIT NUMBER 467 WERE RECEIVED INTO EVIDENCE.)
(BUCCAL SWABS MARKED AS STATE'S EXHIBIT NUMBER 468 WERE RECEIVED INTO EVIDENCE.)
MS. GOUDE: Thank you, Your Honor. We have no further questions for Senior Special Agent Kelly at this time.
JUDGE NEWMAN: Cross-examination?
MR. GRIFFIN: No questions.
JUDGE NEWMAN: Thank you, sir.
RYAN KELLY: Thank you, Your Honor.
(The witness exited the stand.)
JUDGE NEWMAN: Your next witness?
MS. GOUDE: Rachel Nguyen.