0:00Yes, sir. Please. You could take the stand, sir. Good morning.
0:03Reminding you that you're still under oath from yesterday. Yes, sir. Thank you. Good morning, sir. Good morning. All set, Mr. Kubosi.
0:10Thank you. Uh, sir, I just had a couple more questions for you. Um, the firearm that you used um um on the 30th. Uh what
0:20happened to it after um you left the residence? Uh so I secured the um the scene and then once more officers showed
0:28up um they relieved me and the uh the chief had me um walk with him to his car
0:36and um he took my firearm and he gave me his um
0:43you talked about Kelsey Fitz Simmons. Do you see her in the courtroom today? I do.
0:47Can you point to her and describe an article of clothing that she's wearing?
0:50Uh she's wearing a sweater. May the record record reflect she had identified the defendant. Uh yes it may. Thank you. I have nothing else.
0:58Okay. Uh crossexamination.
1:18May I inquire you? Yes, please. Thank you. Good morning, sir. Good morning.
1:23Before we get into the case, um I'm looking at your glasses.
1:28Are those glasses AI recording type glasses? No. Okay. So, you're not recording anything, right? Absolutely not.
1:35Okay. Um let's go to uh June 30th at Kelsey Fitz's house. What time did you get
1:44there? Um I think right around 6 or 5:30 6 o'clock.
1:53Um the upshot of that visit was that
1:59when you got there, you didn't secure the firearms, did you? Uh no, we didn't.
2:06And you collectively, meaning the three of you, you brought the guy getting the restraining order to the person he claims he's in fear of. Correct.
2:15Um I wasn't aware that Justin was in route. Um that was Lieutenant Daly when
2:22he uh made arrangements with um Justin.
2:28So you're saying that Sorry, finish your answer.
2:30Uh Justin I Allen that was your uh that was not your part of this uh incident? No, it wasn't. Okay. And you're saying that that Oh, sorry.
2:38Excuse me. One moment. One moment.
3:13Mr. Fredo, can you hold on one second? Sure.
3:16Um I just I'm uh I want the um jury box to be empty, so I just want to have the um gentleman move.
3:25Thank you. Sorry about that, sir. We'll make we'll make room for you.
3:39And um just one second, Mr. Bradle. All set, Mr. Bradle. I'm sorry to interrupt you. Thank you. So,
3:48when did you become aware that Justin Elaine was coming to the house? I wasn't aware.
3:57Did you see him at all when you were there? No. Okay.
4:03You were aware that he came in and was walking around the house? No, you you were not. No. Okay. Um,
4:12you go upstairs with Kelsey and with uh Officer Houston, correct? Yep.
4:17Officer Houston leaves to see who's coming in downstairs. Uh there was an older uh woman that was
4:26causing a scene uh with Lieutenant Daly and uh question was did Houston go downstairs?
4:33He did to mitigate what was going on uh downstairs is what my belief was.
4:38Okay. And you were with Kelsey when she was uh she had gone into her bedroom, correct?
4:47Yes.
4:48Then you went down the stairs to see what was going on. No, you you took some steps down the stairs, didn't you?
4:56I did not.
4:57Your step your testimony is that you uh stayed on that landing? Yes.
5:03Okay. Um isn't it true you left Kelsey alone in that room for a period of time? No. Okay.
5:11You're serving an order on someone who's your colleague, correct? Correct. Okay.
5:17It's fair to say that this restraining order service isn't exactly going by the book, is it?
5:24Uh, and from my past experience, it it it is.
5:28Well, the guns are floating around out there.
5:31Um, actually, uh, Kelsey had stated the guns were downstairs in the basement in the safe. I didn't ask you what she stated, did I?
5:40Continue. Thank you. So, the guns are still floating around.
5:48You're serving a colleague. The guy comes to the house who's got the order.
5:53It's fair to say this isn't exactly a garden variety service of a restraining order, is it? Uh, that's inaccurate. It's inaccurate.
6:01Yes.
6:02Okay. And this is just another day for you. Uh, no, it's not. So, in fact, you were working, right?
6:10Mhm. Yes. You get a call from Houston. Yes. He tells you what the plan is. Correct.
6:19Uh, yes. He said that um He didn't ask you what he said. Okay. He told you what the plan is. Correct. Uh, no. He asked me to meet up with him.
6:28He told you that Kelsey's ex fiance got a restraining order and that you had to
6:35serve it, get her firearms, and get the baby, didn't he?
6:38Uh, not on the phone. No. And you said to Houston on the phone, whatever he said to you, your answer was, "Sounds good,
6:47right?" No, that's not what you said. I I don't remember what I said to him.
6:53Okay. Well, that's what you told the grand jury, isn't it? Objection.
6:58Okay. I over misstating what he told the grand jury.
7:02Well, you can you can restate during redirect.
7:06We'll we'll we'll get to all that you're we'll circle back. I prefer that you both sides um show a witness what they're referring to when they're trying
7:13to I will, your honor. Thank you.
7:22I want to ask you some questions about your relationship with Kelsey. Sure.
7:26Um you said that you didn't know her well. That's correct.
7:30Um and you said that she was on maternity leave most of the time. Is that right? Uh yeah, that's correct.
7:39And uh you also said that you got along well with her, right?
7:47For the the time I I think we went to one or two calls together. Other than that, I worked a completely different shift. So
7:55So is we got along when we went to calls? Yes. Did you get along well with her or not? Yes. Okay. And did you think well of her?
8:04I really didn't have an opinion. I didn't have a chance to really get to know her.
8:09Well, do you know Moren Teresi? Your neighbor? Moren Teresi. You gave her your opinion of Kelsey,
8:16didn't you? I don't remember. You called her a whack job, didn't you? I don't recall.
8:23I'm I'm sorry, Mr. Braille. I missed the question. Um, can can you state that again? I So So I asked u
8:30him if he knew uh Miss Moren Teresi, his neighbor. Okay.
8:34And and I said that he gave his opinion of Kelsey to his neighbor and then he called her a whack job and then you can answer again, sir. What was your answer?
8:44I don't recall. You don't recall?
8:46Is it possible you called her a whack job to your neighbor? It's possible.
8:49So that's what you really think about Kelsey, is it that she's a whack job? After she tried to kill me.
8:54And at the time you went in there loaded for bear, didn't you? No.
8:58Well, let's see. You told the um
9:06state police that the job was to section her, didn't you?
9:10Uh it was it was spoken about that if she reacts badly um during the
9:17restraining order. Um she may have to get sectioned.
9:20Well, you you that's what you said that you you had pre-planned that you were going to section her.
9:24It was a section her. Isn't that what you said? No, that's inaccurate.
9:28Hold on one sec. Let me just go through some ground rules. Um you need to wait until um the questions complete because we can't have two folks um talking over one another.
9:37Yes, sir. All right. Thanks very much. Go ahead, Mr. Gradle.
9:39And and also you raised quite a lot of concerns about uh where Kelsey parked her car. Correct. Yes.
9:46And you suggested at one point that you could box her in and take her into custody with respect to the car, right?
9:53Yes. So, you were thinking that she was going to need to be sectioned, that she was a whack job, and that she needed to be boxed in and placed into custody,
10:02right? I'm asking about a state of mind.
10:07Has testified that he thought she was a whack job before he went in there. Overruled.
10:14Those are all things that were in your mindset, weren't they? No. Well, you said them, right?
10:20Uh, no. That's inaccurate. Sectioning her. It was bought up by my lieutenant that it may she may have to be sectioned.
10:27And you told the state police that part of the job was to section her if she were to be sectioned.
10:33You didn't say that part to the state police, did you? I don't recall. Okay. Well, we'll go over all this. Don't worry. Okay.
10:39And so with respect to the car, you you
10:45testified in such a manner that uh you're suggesting that there was some suspicion attached to that, right?
10:52Um, can can you rephrase?
10:54Yeah. You're suspicious of the fact that she parked the car 150 yards away. You said yes. So,
11:04your your mindset is that she's evading something or trying to she's up to something. Well, my training and experience, um,
11:15the distance of where she parked her car from her house and having a baby. Um, it
11:23and also her behavior in the past where her car was always parked in the driveway. Uh, was So, you didn't know her very well.
11:30I knew where she lived and I patrol the town so I have to drive by her house.
11:36So, she parks in the school next to her house. Yes.
11:40What's that? What's the What are you thinking she's going to do?
11:42I have I I don't know. I don't know what her mindset was.
11:47So, you're speculating about any suspicion that's attached to that part of the job, right?
11:54I'm just uh I was just suspicious about that.
11:57So, she's in the house. You know she's in the house. No, I don't.
12:02You go to the house. You knock on the door. Daily knocks on the door.
12:07She comes out like a regular mom, holding the baby, wearing sweats,
12:13hair's probably in a ponytail, opens the door. Yes.
12:16Right. So, at that point, do you let go of your suspicions about where she parked the car?
12:22I was still curious as to why she parked her car over 150 yards away.
12:27Well, you're looking at it through your own lens as an investigator. Isn't it possible that there's a hundred other possibilities in her life that maybe
12:36she's parked there for some other reason?
12:38Uh, could be. I don't know. Again, I don't know what her mindset was.
12:44So, you go in there and you are the only officer who has tactical gloves on when you go in there. Correct.
12:51Uh, they're neoprene gloves. Yes. So, you're ready for anything, right?
12:59It's past practice with me after working in Lawrence for so long. Um, I tend to glove up for sanitary reasons. Uh, I
13:08knew we were going to have to handle her firearms, so I didn't want to um get any of my prints or anything on them.
13:18Well, you said you took them off fairly quickly when you got in there. Yes.
13:22And at what point did you take them off? uh right before she handed me the baby.
13:31So, you hadn't yet touched the firearms and you took them off. So, that plan about not getting your prints on the firearms didn't pan out, did it?
13:42I didn't want to hold the baby with uh those gloves. They're pretty dirty. And while we're talking about holding the baby,
13:52it's fair to say that Kelsey Fitz Simmons with three cops standing there
14:00had her baby and she's the one that chose to give it to you. Isn't that right?
14:05You didn't ask for it. Daily didn't order her to give it to you. She with whatever her mindset was chose you to take her baby. Isn't that right?
14:14That's correct. and she chose you to take a bottle and feed her baby, right? That's correct.
14:21And then this is five minutes before you say she tries to murder you, right? That's correct. Okay. Um,
14:29now you said that you felt that she couldn't be the baby
14:37couldn't be comfortable because you had your vest on. So, uh,
14:45it it wasn't comfortable and you wanted to give the baby off to someone else, right? Is that correct fair statement? Yes.
14:51Okay. Um, well, that's not what you said prior, is it?
14:55Well, I like to have my hands free as well. I don't like my hands tied up. That's what you said the last time,
15:00right? That when you spoke with the state police that you didn't like having anything in your hands and it was really a tactical reason why you gave the baby up, right? Uh, no. It wasn't a tactical.
15:12I just didn't want to be holding the baby.
15:14Isn't it tactical that you want to have your hands free to to deal with anything you have to deal with at this?
15:18I want to have my hands free on every call.
15:20What's wrong with the word tactical? Why isn't that tactical? Can you rephrase that? What's wrong with the word tactical? There's nothing wrong with that.
15:29So, why doesn't it apply? Because I said it. I'm I'm sure it could apply.
15:35I'll strike that, your honor. Why Why doesn't it apply? I'm sure it could apply. Sure.
15:39So, for tactical reasons, you gave up the baby, but that's not what you said here at this trial, is it?
15:47Uh, I don't I don't recall what you can you rephrase that here. At the trial, you said that the baby couldn't have been comfortable and you wanted to give the baby off, right?
15:56Yeah, that's correct.
15:56And you didn't say anything about wanting to keep your hands free for tactical reasons, right?
16:01It wasn't asked. You were asked what happened repeatedly and you had every opportunity to talk about it, didn't you?
16:10Sure. And you left it out. Not on purpose. We'll see.
16:19Mr. Bradle, comment like that isn't helpful. Please. Sorry. On a motion to strike.
16:25You're gonna You're moving to strike your own comment?
16:28I am. It's alive and um and that's very uh forthright of you.
16:40Can I set a moment here? Yeah, take your time.
17:12I ask you something about your grand jury testimony that we alluded to. Um,
17:24so you testimony here was that uh you didn't get the whole plan from officer Houston on the phone, right? Uh, yeah, that that that's correct.
17:32And my suggestion that you your answer about the thing in sort of a matter of fact way was okay, sounds good. And you disagree that you said that,
17:40right? I don't disagree. I just don't recall. You don't recall?
17:43Yeah. What I said? So, isn't it true that you were asked page uh page uh 36
17:5036 who did you get a call from? Officer Houston. And what was that call about
17:58was the next question. And your answer was he had asked me if Lieutenant Daly reached out to me. I said no. Officer
18:05Houston said, "Hey, can you meet me at the CCC, which is a little grade school behind the Atinson School?" He said, "We have to serve papers to Officer Kelsey."
18:14I said, "Okay, sounds good." And I drove over to that location and met up with him, right?
18:20And you knew those papers were a restraining order for Kelsey to give up the baby, give up her guns,
18:32lose her job.
18:33I had brought by her fiance. Right.
18:35I had no idea what was entailed in the restraining order at that time.
18:41At what point did you did you learn the job here? Uh, as far as the restraining order,
18:46as far as this job you were going to do at Kelsey's house, what job?
18:51The restraining order service. Taking the baby, finding the guns when I met up with sectioning her. Officer,
18:59boxing her in. When I met up with Officer Houston, don't talk when I'm talking, sir.
19:05Box. Sorry. Um let let's um let's not argue back and forth and just ask your questions. We just wait to um to answer till he's done. Um if you can restate.
19:15Thank you.
19:16Sure. So you asked me what the what the job was. So my suggestion is that the job is serving the restraining order,
19:25going to get the baby, finding the guns.
19:28You thought about boxing her in and taking her into custody. You thought about sectioning her. That job. uh when I met up with Officer Houston behind the CCC.
19:40And at that point, you knew what you were getting into, right? after he explained uh what was going on. And we were pretty shocked.
19:54In all of the statements you've made prior to being here yesterday and today,
20:01you've never said that you were pretty shocked about anything, have you? I don't I don't recall.
20:08You weren't shocked. You were treating this like a video game, weren't you? No.
20:16Well, your first answer is sounds good.
20:19Like it's any other day, right? As to meeting up with them behind the CCC. Yep. Sounds good. I'll see you then. Sounds good to meet up. Okay.
20:37Let's talk about the bedroom and the shots that you fired
20:43here in court. You said that um those shots were in rapid fire. Uh rapid secession. Yes.
20:51Okay. And like a boom boom. Yes. Okay.
21:03No, that's not what you said to the state police though, is it?
21:08That was eight months ago. Right around there. I I don't recall. I said I shot twice, possibly.
21:14You told the state police that you pulled the trigger.
21:20This is uh 12:32 in the audio. You told the police that you pulled the trigger once. You said the word once.
21:30And then you said, "I kept giving commands."
21:34And then you said, "I pulled the trigger again." That's a completely different scenario than two shots in rapid succession, isn't it?
21:44Uh, as far as the time frame,
21:51I was trying to be I was trying to recall the event uh as best as possible.
22:03But, you know, rapid secession, you pull the trigger, pull it again. Yes, I pulled it twice.
22:18So that was July 3rd, right after this incident, wasn't it? Yes, sir.
22:23So it's fair to say that talking then is
22:31right after the incident. Now you're here in court.
22:39Both of those propositions can't be true, can they?
22:43I'm sorry. What what the proposition I'll rephrase here. The proposition that you said here in court that you made two shots in rapid succession.
22:51Yes. And what you said on July 3rd,
22:56one shot, giving some commands, another shot.
23:00Both of those things can't be true, can they? They can be true. They can be true. Yes.
23:04So, rapid succession and then what? You you talk really fast before the second shot. Oh, I was I was given commands. Don't do it. Don't do it.
23:13I'm asking you about this particular passage. This particular thing
23:20here. You said you made two shots in rapid succession. Yes.
23:23You painted a different picture on July 3rd, didn't you? No.
23:27You shot, you gave commands, and then you shot again. How can that be rapid succession?
23:33Cuz that's how it went in rapid succession.
23:36You disagreed with me that it was a boom boom.
23:38Yes. So, where's the time for the commands between the shots? As I'm yelling them.
23:46Well, that's not what you said. You said you pulled the trigger once. I kept giving commands. I pulled the trigger again.
23:52Yes. So,
23:57they're two different assertions, aren't they? No. Okay.
24:18You gave a statement on July 3rd to the state police, right? A recorded statement. Yes.
24:25You testified yesterday and today. Um,
24:31what was your preparation like for this case? to come in here and testify.
24:37Uh I met up with um Mr. Gubossi, Attorney uh Guba. How many times?
24:46I believe twice.
24:48And when uh did that when when were those meetings?
24:54One was recently, I think last Thursday, and the the one before uh I I can't remember.
25:04And when did you start prepping your testimony? On this past Thursday.
25:10Well, you probably started prepping your testimony about 5 minutes after the shooting, didn't you? No.
25:17When was the first time you were questioned about what happened? I think July 3rd.
25:25So, everyone left you alone until July 3rd. Yes.
25:58when you were upstairs with Kelsey.
26:03She kept giving you things and asking you to take them downstairs, didn't she? That's correct. And she did that with Houston as well, right? Yes.
26:11So, it's fair to say that she was trying to get you away from her, right?
26:17I don't know what her mindset was. I wasn't going to leave her alone. Sure. Let me ask you a better question.
26:23The effect of that would have been if you took things downstairs that you would have left her. Yes, that's correct.
26:41That's not consistent with her trying to kill you, is it? She's trying to get rid of you.
26:50Can you um ask that question again? The fact that she's trying to remove you from the area where her gun is is not consistent with her trying to kill you,
27:00is it? Um, at that point, no.
27:09So, let's get into the the incident here. What do you say happened?
27:14You say that Kelsey went into her bedroom after being in the baby's room. Correct. Yes.
27:21She uh you don't go in the room, right?
27:26Uh no, I stayed at the very top of the stairs um right before the door frame.
27:32So, it's fair to say you're on the landing the top of the stairs looking into the room. That's correct.
27:38And the room's got a lot of furniture in it, a lot of things everywhere, right? Yes.
27:43So, you say that Kelsey has a change in her demeanor, right?
27:52Yes. She starts to shake and get upset. Shaking uncontrollably, you said, right?
27:58Uh, yes.
28:10Then she lunges. Yes. She's on her knees.
28:15She was, I believe, on her right knee.
28:22You said that she pushed off her left leg and lunged, right? Yeah. Yes.
28:28And at that time, you were 3 ft away from her. Yes. Maybe less. Maybe.
28:37So, can we agree that's arms length?
28:41She was a a little a little further away than arms length, I would say. So arms length if you reach over maybe.
28:49How about that? Yes.
28:50Okay. And your testimony is that she lunges over and obtains a gun. Yes.
28:57Right. And she assumes a certain stance.
29:05Uh can you elaborate?
29:07Well, you were there. What stance did she assume?
29:11She pointed a gun at my face and pulled the trigger.
29:13And yesterday when you were being questioned, you assumed a two-handed stance to show that, didn't you? That's correct.
29:18And what do you call that kind of a stance? I don't know. Like a modified weaver stance. Yes.
29:26So she assumes a modified weaver stance.
29:28Can you stand up and a modified weaver stance? That's just what it's called. Okay.
29:43Can you demonstrate to us what a modified weaver stance looks like? Do you want me to stand up and show him? Sure. So, are you asking him just in general?
29:52Just to show the stance in general first. Yes, Judge. Thank you.
29:56So, she grabs it, comes up, pulls the trigger.
30:00That's not I don't think that's what he was asking you, but So, just what's the modified Weaver stance? What is it here? And what can you describe it? What are you doing when you do a modified weaver stance?
30:09Uh strong side. Strong side. All right.
30:13So, if I'm righty, this is my my strong side. That's going to grab the pistol and I use my support hand uh to to support the weapon.
30:23Are you righty? I'm sorry. Are you writing? I am. You can have seat. Thanks. Thanks.
30:29And you're saying that Mr. Simmons had the gun in that kind of a of a stance? Yes.
30:34And how far was the gun away from your face?
30:41It was right outside of arms length.
30:46So So she's 3 ft away. She assumes the modified Weaver stance. So she's probably another foot or two towards you, right?
30:55Uh she stepped to the left. I I don't know if she stepped towards me.
31:00Well, your testimony was that she immediately lifted the gun to you and Yes.
31:08pulled the trigger and tried to shoot you right in the face. Yes. So, the gun didn't go off. No.
31:15And there she is with the gun there. The guns didn't go off. And you're within feet of
31:25her and the and the the gun that didn't go off, right?
31:28That's That's correct. And you didn't just grab her, did you?
31:31No, I was in complete shock and then she started backpedaling immediately and trying to tap and rack that weapon.
31:37Right. So, your testimony is that Kelsey goes from a wounded bird shaking uncontrollably
31:46to a female movie action hero, doesn't she? Those aren't my words.
31:54That's your description of what happened, isn't it? I didn't describe that either.
31:58So, she gets the gun, she tries to murder you in the face. Yes. 5 minutes after she has a feeder baby.
32:07Yes. She pulls the trigger. Nothing happens. Yes. It wouldn't click. She stands up, right?
32:15She was already standing.
32:16So, as she's standing, she shoots you in she tries to shoot you in the face. Yes. And then she started to backpedal. So, first she backpedals,
32:24then she side steps. She tap racks. She tap racks again. Right. Yes.
32:30So in all this time, this is like the longest tap rack in history, isn't it?
32:34It's 4 seconds. So she gets up,
32:39she side she sidestep first or back pedal first? Back pedals.
32:46So she back pedals first and then side step. Um
32:53I would say maybe four or five and then maybe another
33:00three, four or five to her left, which is my right.
33:04So, she goes into action. She is she tapping the magazine and then
33:11racking the gun while she's moving around.
33:14Yes, she's a well-trained police officer who's a whack job who tried to kill me.
33:24So, let's get the order straight.
33:30You said that she You said that she backpedals first.
33:34Uh, yes. After she pulled the trigger and nothing happens. Yes.
33:41And then she taps the magazine. Yes. And then racks the slide. Uh, I believe her hand slipped off.
33:50That's when she went and and I was giving her commands. Don't do it. And she rerecked and started to bring her right arm up.
33:59And then she does it again, right? Yes.
34:03And you actually have no idea whether she successfully racked it the first time or successfully racked it the second time. Correct. That's correct. You don't know what happened?
34:11No, I don't.
34:12And so it takes a few seconds to take four or five or whatever steps back towards the air conditioner right
34:22from beginning to end. Uh when she pulled the gun on me and pulled the trigger and by the time I shot her, it was right around 4 seconds total, if not three and a half. It was very fast.
34:33So, she goes from shaking uncontrollably, sad about her situation,
34:38crying to being pretty nimble. She wasn't crying.
34:47She walks, she backpedals, you said, right? That's correct.
34:52Then she side side steps Yes.
34:55to the air conditioner. And you had a look of panic on your face at that time, didn't you? No. You were flustered, weren't you?
35:04No. Well, you were in shock 5 minutes later, weren't you?
35:09Um, after the incident and my adrenaline dumped. Uh, yeah, it was. I was in shock then.
35:15So, at the time, getting back to the incident,
35:20Kelsey's by the air conditioner. She's backpedalled. She's sidestepped. She tapped. She racked. She tapped. She racked.
35:29And then you shoot her.
35:31Yes. And you shot two shots. Where are we on the rapid succession? Which which one do you want to go with? Rapid succession or you shot, gave commands,
35:40and shot again? Which is it?
35:42I was given commands and shooting at the same time.
35:45Okay. Well, your prior testimony was that you shot, you pulled the trigger,
35:51gave commands, and you pulled the trigger again. Yes. So, was it that or was it boom, boom,
35:58rapid secession? It all happened in 4 seconds or less.
36:02So, you're a very well-trained SWAT officer. Yes. Yes.
36:10You're a firearms instructor. No. You're a You're a patrol instructor.
36:16Will you instruct other officers on the job? Right. Field training officer. Field training officer. Yes. Thank you. And you've been doing this for 25 years?
36:25No. 20 years. Right around there. Yes.
36:28Okay. So, you've been doing this for 20 years and one of your thought processes was that you wanted to give your
36:36training and experience back to the North Andover PD where you started, right?
36:40Uh, yes. And and come back where where I started. And here,
36:48your first shot, you missed her from about 7 ft away.
36:52I did. Uh, it was longer than 7 ft. It was at that point about 15 ft.
36:5615 ft I would say. Do you have any measurements on this?
36:59No, but if you remove the bed and and you were to walk diagonal from where I shot, it was probably around 15.
37:07So, the first shot you missed her and you hit the air conditioner. Is that right? Or I I didn't I I didn't know where it went.
37:13Okay. And uh the the fact is that we have only one spent projectile in this case, right?
37:21I'm sorry.
37:22We only have one spent projectile in this case. Correct. I don't know what state police collected.
37:28You weren't curious as to any of the paperwork or anything that happened in the case.
37:33I believe they told me that there was one on the bed and one on the floor, I think, but I don't know. I don't know where that one projectile comes from.
37:42Did you know that there was one in the uh curtain next to the air conditioner? No.
37:49Have you looked at any photos from this at all? Uh some, yes. You didn't know that? No pressure. Yes.
37:56Just Yes.
38:17Do do you want some water?
38:36Do you have some? Thank you, sir. get it for it.
38:47I appreciate it. Thank you.
38:57Thank you. Going to show you for the record.
39:05Exhibit 49. Sir, see that?
39:09Uh, yes. That's the entrance to to her bedroom. And is that uh a fair and
39:17accurate depiction of kind of the stuff that was there at the time?
39:22I didn't see any of that at the time because I was facing forward. That's a completely different angle.
39:29Well, that's the area where you say that she lunged to right
39:36there. Yes. To that would have been my left. Yep. Now, at some point, um,
39:44there was a safe there, wasn't there? A green safe. I have no idea what was there.
39:50Didn't you speak with Officer Core at the scene? Uh, yes, I did.
39:54And Officer Core, you said that you ordered him to do something. You remember that? I did.
39:59You ordered him to take the gun and uh get it out of there, secure it.
40:04And um, what were you doing at the time you ordered him to do that? uh rendering aid to um Kelsey Fitz Simmons.
40:12Okay.
40:12So, you're over by the bed. He would have had to go in that area to uh to get the firearm and secure it. Right.
40:20So, the I placed the firearm, you can't see uh the right side of the door frame.
40:28So, if you were to walk into that bedroom and look right, um there's some sort of uh I don't know, nightstand or something. I I put the weapon right there.
40:42I show you exhibit 75.
40:48Is this the uh Oh, it's the white. Yes. Yes, that's it.
40:53Is that where you put the firearm on top of that? Now, let's let's exhibit what? Uh 75 yard.
41:00Thank you. So,
41:06let's talk about who touched the firearm. So, Daly picks up the firearm, right? Yes.
41:13And the firearm was under Kelsey's leg. Correct.
41:18I don't know where it was. I was covering down I I didn't I know he flipped her over and and found the weapon. I I don't recall where it was.
41:27Okay. You heard uh Strike that. Um, so
41:35your testimony is that Kelsey's racking the gun, side stepping, backpedaling,
41:41tap rack, tap rack, and at some point she points the gun at you, right?
41:48Uh, her arm started to come up towards me.
41:51Okay. So, it's fair to say that she's back again. Like we said earlier, she's starting to do this, right? No, no weaver stance. Okay. It's a one hand.
41:59It was Is that that Is that the FBI crouch?
42:04What do you call that? Is that a one-handed?
42:08Okay. Not It's not called the FBI crouch. I've never heard that term.
42:11Okay. So, um she starts to point the gun at you. So, we agree then that the gun is out in front of her, right?
42:19It was It was in the upward position. It was coming up towards me. When I fired
42:25my second round, I saw her um kind of buckle and and she lowered her
42:32weapon and I stopped shooting and then she went to the ground.
42:36You hit her in the chest. She goes flying back and lands on her back. Right. She didn't go flying back. She landed on her back. Correct.
42:44She went She went down to the ground. I don't know which way she went. I think she crouched over. Well, you knew she was on her back, didn't you?
42:51I don't remember. As far as as that goes, it was that's kind of a blur.
42:57So, the idea that she's got the gun out in front of her,
43:04she falls on her back. If the gun's underneath her, is this some sort of a magic gun?
43:14I don't know where you're getting at.
43:16Doesn't Doesn't it make sense that if the gun is out here and she's receives a force of a 9 mm bullet pushing her back
43:24this way, how does the gun get all the way behind her and under her leg? I have no idea. It's the way she fell.
43:32So,
43:38so back to the notion of who touches the gun. Daily picks up the gun, right?
43:44Yes. Daily puts it on the bed, correct? Yes. And you don't like that? I don't. It's too close to her.
43:52Okay. Well, she's sitting there with a gunshot wound to her chest with you there and Dy there. Isn't that fair to say? Yes.
44:00So, you then you touch the gun, right? I do.
44:06And then you move it to the white shelf. Bookshelf. Yes.
44:14And then uh Core arrives and then you tell Core to grab the gun and secure it. Right.
44:22I do. And then Core has it. Does he take it into the hallway?
44:29Um maybe. I remember just focusing my attention on on uh Kelsey.
44:35Sure. Understandable. So you're focusing on Kelsey and you're giving her first aid.
44:41Yes. Well, off uh Lieutenant Daly was um starting to work on her.
44:46Well, is it fair to say that at first you still had your gun on her, but then you you helped with the first aid? Yes. Okay. Afterwards,
44:54so that was your primary focus was the once you felt that she was not a threat to you on on your testimony,
45:03uh you started to assist with the first aid, right?
45:07Yes. And you and Daly are rendering first aid and then core comes, right? Uh, yes. Yes.
45:15And you say, "Get that out of here. Secure the gun." Yep. Make it safe.
45:19Okay. So, it's fair to say that core does that, but your attention is not on what he's doing. It's on rendering first aid, right?
45:28That's correct.
45:30So, you don't have any uh knowledge or observation of what Core did with the firearm, right? No.
45:45At some point, are you aware that core takes the uh green safe and the firearm out into the hallway?
45:54I I didn't see him do any of that.
46:07show you uh exhibit 51. Do you recognize that?
46:15Uh yes, I do.
46:17So exhibit 51 is the left side of the door frame where you say that Kelsey lunch, right?
46:25That's correct. Okay.
46:27Is that how it looked when she launched over there? I didn't see that when I was in the hallway.
46:33Do you know anything about that shoe box with the orange lining? I have no idea.
46:40Do you remember seeing that uh chest with the brown leather trim on it?
46:45I thought it was an end table when I walked out of the room. Um,
46:53do you think that the gun came from any of those areas there?
46:58With how quick she grabbed it? I think it came from that that box, but I I don't know.
47:14Exhibit 36. That's a picture of the uh stairway, right?
47:22Yes. It's pretty narrow. Yes.
47:27And you went up to the top and you were at that landing, right? That's correct.
47:34You never entered Kelsey's room? No.
47:45So, you said that you were in you were shocked that Kelsey was quickly grabbing a gun and putting it in your face.
47:54Yeah, absolutely.
47:56And you um that she'd gotten the drop on you, right?
48:04Yes.
48:06And at that point, you feared for your life, you say? Right. Absolutely.
48:12And you panicked and you shot her. No.
48:17Well, you missed her from just a few feet away. It's hard to shoot a moving target or a moving anything moving.
48:31Are you aware of uh the post commission?
48:35Yes. And you know that the post commission has issued uh regulations that are in the code of Massachusetts regulations.
48:44Uh yes.
48:46And you know that it's prohibited to use deadly force on a
48:53person who is exhibiting a danger only to themselves. Absolutely. And you knew that on June 30th,
49:032025, didn't you? I've known that since I graduated the police academy in 2006 or even before. Right.
49:12And you went in there thinking that Kelsey was dangerous
49:18and had guns and you might get into it, right? That's inaccurate.
49:27And that's why you had your gloves on, isn't it? No. You were ready to get wet. No. I'm sorry. Ready to get what wet?
49:36Get wet, your honor.
49:41And that's when you had to adjust the narrative. Isn't that true? No.
49:47So, you're going to maintain that you got into a a gunfight with somebody who was your colleague,
49:58right? Yes.
49:59Who had just given you her baby to feed five minutes earlier. Yes. Of her own valition. Yes.
50:13She developed some sort of a homicidal animus towards you for what Justin
50:22Elaine just did to her. Right. I don't think it was unbeknouncsted to me. I didn't know Justin was in the house. Um,
50:30I think I was standing in her way for her to get downstairs and and uh kill Justin.
50:57You I assume this is in hindsight. Hindsight. Yep.
51:07One moment. Please take your time.
51:23Did you have a taser? Um, I did.
51:28Did you think maybe to use the taser when she pulled the trigger and the gun didn't go off? No.
51:35You meet deadly force with deadly force. She's 3 ft away from you. Yes.
51:40Could have just grabbed her, couldn't you? No.
51:54And if there was deadly force, you wouldn't have stopped at two shots,
51:59would you? You would empty that magazine right into her. I stopped when she stopped.
52:06And that's what I'm trained to do. Stop the threat, not empty a mag.
52:16What were some of the things that she asked you to bring downstairs? Uh, I think there was a basket of books. Um,
52:26and I believe some clothes. I think she put him in a uh car seat.
52:35What did you say to her when she asked you to uh bring him downstairs? I said, "We'll deal with that later."
52:42And I put I put him down.
52:51What was her reaction? She just kept packing stuff.
53:27So, you said that you were uh you started your career in the North Andover Fire uh Police Department. Correct. That's correct.
53:34And you left for the Lawrence Police Department in what year?
53:40uh 2011 and then you were on the SWAT team from 2019 to 24. 2024, correct?
53:47That's correct.
53:49And that you left North Andover to get a faster pace, right? What do you mean by a faster pace?
53:58Uh busier. Are you talking about when I left North Andover to go to Lawrence or Yes. Uh, a busier atmosphere,
54:08more action, more calls for service. More what? I'm sorry. Calls for service. Calls for service.
54:15I wanted more experience. And you were there for how long? Uh, in Lawrence.
54:23Yeah. From 2011 to 20 2024. 2024. You go back to North Andover,
54:33correct? Yes.
54:34And you said that you wanted to uh bring your training and experience back to where it all started, right? Yes.
54:42Meaning you wanted to uh offer officers at North Andover the benefit of your training and experience. Correct.
54:53Correct.
54:58You said that uh you only have 10 years left. Getting older. The slower pace is what's needed, right?
55:06Yes. So,
55:13is it fair to say that the stress of a of a busy urban department was getting to you? No.
55:22Well, you did tell Kelsey that you had PTSD, didn't you? Absolutely not.
55:31So, slower pace. And you just wanted to grace the department with your training and experience. Correct. Yes.
55:39That right. Yes. Um,
55:47judge, I I told council that uh I would ask for a sidebar before the next topic. Sure.