“Yes, I am.”
“Okay. So, on that night, you didn’t recover the keys from her, you gave them back to her? Did you take the keys from her?”
After an objection from the state, DeQuarto responded, “As I stated, I did not fill this form out or issue this property receipt—so I don’t know.”
The defense attorney moved on to grilling DeQuarto about his meetings with ADA Mohl and ADA Byrne, inquiring how many times they’d met and if the attorneys had taken notes. He asked if DeQuarto or his colleagues Moscato and DaSilva had discussed their testimony with other witnesses, and DeQuarto said no. Portale brought in four defense exhibits of DeQuarto’s notes, asking where and when they were written. DeQuarto said that the notes were taken on April 27 at the barracks.
“You didn’t take those notes at the hospital with my client?”
“No.”
“When you arrived at St. Luke’s Hospital on 4/19, was Miss Graswald in her hospital bed?”
“She was getting changed, I believe. The curtain was closed.”
“Could you see in … through the curtain?” the defense attorney said, implying inappropriate behavior.
“No.” DeQuarto was adamant.
“So how do you know she was getting changed?”
“I spoke to Trooper Freeman and asked how she was, and he said she was in there, getting changed.”
Portale then wanted to know why the investigator took Angelika back to the barracks for further discussion.
“Because that’s what we do,” DeQuarto shot back.
“Well, you could have had her fill out a statement and take notes at the hospital, right?”
“I don’t carry that type of paperwork—I was at the hospital. So, for me to bring her back to the station where I have my computer, where I can type up the form, was better.”
DeQuarto’s attention was then directed to people’s exhibit 1. “What’s the name of that form—the New York State form?” Portale asked.
“General Four.”
“That’s a criminal supporting deposition, correct?”
“I just know it as a supporting deposition.”
Byrne, who was willing to butt heads with opposing counsel as much as ADA Mohl was, said, “Objection, Your Honor.”
“Criminal cases?” Portale clarified.
“Asked and answered and also beyond the scope of this hearing,” Byrne said.
The judge sustained the objection and Portale forged ahead. “Did you take any handwritten notes with regard to what you entered into the supporting deposition?”
“No.”
“You typed it as you went?”
“Yes.”
“Why was it important to have Miss Graswald sign anything in that date and time and place?”
“Objection, Your Honor. There was no testimony that it was important to do that,” Byrne said.
“Was it?” Portale asked.
“The objection is sustained,” the judge said. “Don’t answer that question. You can rephrase,” he told DeQuarto.
Portale tried again. “Was it important to you to have her sign the supporting deposition at that date, time, and place?”
Again, ADA Byrne objected. “The detective’s belief of whether it was important or not important does not resolve—”
“Sustained,” the judge ordered.
Portale argued with the judge, citing cases against his decision.
“Your Honor,” Byrne said, “what’s controlling is the court of appeals standard, People versus Yukl, which is what an innocent person, in the defendant’s position, would believe, with respect to custody. The subjective belief of the officers, subjective belief of the defendant, is not controlling.”
“The objection is sustained again,” Freehill agreed.
Portale continued, “You could have allowed Miss Graswald to go home, get a good night’s sleep, and take her deposition in the morning, correct?”
Byrne lodged another objection. “It calls for speculation, and asked what he could have done, as opposed to what actually happened.”
“Sustained.”
Portale then confirmed that the conversation with Angelika at the barracks on April 28 had lasted from half an hour to forty-five minutes and that DeQuarto had learned that she was a beneficiary of Vince’s life insurance policy a few days after the incident. The detective also affirmed that he had asked Angelika about her cell phone, her relationship with Vince, the evening before the accident, and the event itself.
“Prior to the twenty-eighth, did you take a ride on a boat with Miss Graswald to try to ascertain the location of where Mr. Viafore had gone into the water?” Portale asked.
“I did not.”
“Do you know if any members of the New York State Police had done that?”
“I don’t know.”
Portale shifted gears. “Let’s go back to the meeting of the twenty-eighth. Did you arrange that meeting with Miss Graswald, or was there assistance from Laura Rice or someone else?”
“She showed up at the barracks with Laura Rice, yes.”
“Had you spoken to Miss Rice about trying to have Miss Graswald meet you at the barracks?”
“I did speak to her, yes.”
“Was that on the twenty-sixth, the twenty-seventh, or some other date?”
“I spoke with Angelika on the twenty-sixth. So, it was either the twenty-sixth or the twenty-seventh. I don’t recall which day it was.”
“Why did you go to Bannerman’s Island on 4/29?”
“Objection, Your Honor, for the purposes of this hearing, it is not relevant,” Byrne cut in.
“Well, it was part of his direct testimony,” Portale retorted, “as to why he went to the island to walk the shoreline to look for the body.”
“You can answer,” the judge told DeQuarto. “Overruled.”
“Why did you go to Bannerman’s Island on 4/29/15?”
“To do a search of the island and the shoreline.”
“What were you looking for?”
“Anything that might assist us in locating Vincent Viafore.”
“Did you personally walk the shoreline?”
“I did.”
After another round of time-wasting questions and objections over DeQuarto’s work schedule, Portale returned to the April 28 meeting. “The conversation you had with my client, she informed you that she was going to the Cornwall Yacht Club the next morning because she was going to float some flowers, is that right? In the honor of Mr. Viafore?”
“Yes.”
“And that she was going to be floating them from Bannerman’s?”
“She didn’t mention Bannerman’s Island. She told me she would be going to the Cornwall Yacht Club.”
“What time did you arrive on Bannerman’s Island on April 29, 2015?”
“It was approximately eleven am.”
“Did you have your badge and your gun with you?”
“I carry my wallet, which has my shield in it, but I don’t believe I had my gun with me.”
Portale expressed surprise he didn’t have his weapon and that he didn’t bring any material for evidence collection. He also questioned the witness about the lack of equipment brought over by the scuba team. “Prior to April 29, 2015, that scuba team did not do a submerged scuba search of the shoreline of Bannerman’s Island, correct?”
After objections from the state that the judge sustained, Portale changed the topic. “What time did you encounter Miss Graswald?”
“I think it was a little bit after twelve pm, twelve fifteen maybe.”
“Where exactly was she when you first observed her on Bannerman’s?”
“She was coming in on a boat.”
“She had a life preserver with the flowers?”
“I didn’t see her with it, no.”
Portale badgered the detective for assuming Angelika had brought the wreath to the island, even though he hadn’t seen her carry it. He did see it on the dock but did not see it in her hand, DeQu
arto said.
Portale presented him with a photograph of the dock in the state exhibits, but the investigator insisted that the shot did not include the area of the dock where the wreath had rested on a wooden box.
“While you were on Bannerman’s Island with Miss Graswald, did you ever ask her to stand on the shore and show you the line that they took when they left Bannerman’s?”
“I don’t recall that.”
“While you were talking and talking to Miss Graswald on Bannerman’s Island on April twenty-ninth, at some point she began to breathe heavily and she began to hold her stomach; is that right?”
“That’s right.”
“You had testified on direct that you had questioned her about her honesty, correct?”
“That’s correct.”
“But this Investigator DaSilva was also questioning her about her honesty, right?”
“Yes.”
“As was Investigator Moscato? All three of you were questioning her on it, yes?”
DeQuarto replied, “I don’t recall Investigator Moscato questioning her honesty. I remember him saying, you know, ‘Whatever you’re holding inside of you is burning a hole in you.’”
After a short recess, Portale and DeQuarto battled over semantics: whether Angelika had been “upset” or “very upset” while she was being questioned by the state police detectives. The squabble involved finding and providing DeQuarto with the report he’d filed that contained the word “very.”
With that resolved, another skirmish erupted when Portale asked, “At that point, Miss Graswald was the focus of your investigation?”
The judge overruled an objection from the state and Portale continued.
“So, as you sat down and you questioned Miss Graswald, right, about lying and the truth, she was the focus of your investigation?”
“That’s not correct,” DeQuarto said.
“Well, you noted in your notes that prior to 4/29 you thought it was suspicious that she did not show much emotion for somebody who apparently was watching her fiancé disappear, correct?”
“That’s correct.”
“You also were suspicious of the fact that she had posted photos and videos of herself on social media, correct?”
“I was not suspicious of her,” DeQuarto argued. “I thought that the actions I observed were odd and could be considered out of character.”
“Out of character for whom?”
“For someone who is grieving.”
Portale questioned the detective about his note that Angelika hadn’t appeared to make Vince’s disappearance her primary priority before April 29. Then he asked, “You’re saying that she was not the focus of the investigation, but I’m trying to understand, what were you asking her about, what were you questioning her about, what were you trying to find out?”
“Well, you know, Angelika was the last person that was with Vincent Viafore, and she knew the most about him. So, I was trying to find out as many details as possible about them, about their relationship, anything that could provide us with a timeline to set up, because she was the last person that was with him, and we still [had] not located Vincent Viafore at this time.”
“Well, is it your testimony that you were trying to locate Mr. Viafore’s body and that’s why you were asking these questions?” Portale pressed.
“My focus of the investigation was to find Mr. Viafore, and if there were some inconsistencies that I noted, or some behavior that I thought might have been odd, and I was speaking to her about it, it was to clarify the inconsistencies.”
“You asked her how long she had been in this country, correct?”
“I believe I may have. I don’t recall if it was exactly that.”
“How did asking her how long she had been in this country, how was that going to help you locate Mr. Viafore’s body?”
“I asked her numerous questions,” DeQuarto countered. “I asked her about Vincent’s vehicle, if it was paid off … in an investigation like this, where somebody is missing, there can never be enough information that’s provided.”
“My question to you is: How did asking her when she came to this country, how was that going to help you locate Mr. Viafore’s body?”
“It probably wasn’t,” the investigator admitted.
Judge Freehill interrupted, “What does that have to do with the voluntariness of her statements?”
“It has to do with whether she was the focus of the investigation, because they were investigating her, not the location of the body. May I continue?” Portale asked the judge.
“Objection, Your Honor,” Byrne said. “Defense counsel just made a statement to Your Honor which really should be made before a jury in closing arguments, so—”
“No,” Portale said.
“It seems to be a fine line between that. I agree, Mr.Byrne,” the judge said. He turned to Portale. “Continue.”
“Going back to whether or not Miss Graswald was the focus of your investigation on 4/29, when you asked her on Bannerman’s Island, you knew she was the beneficiary of Mr. Viafore’s life insurance policies, correct?”
“That’s correct.”
“And you had listened to the nine-one-one tape that morning and you became suspicious of her after listening to that nine-one-one tape?”
“That’s not correct,” DeQuarto said.
“Well, didn’t you write in your report that you listened to the nine-one-one tape on the morning of the twenty-ninth and you became suspicious of her?”
“No, I did not write that I became suspicious of her. I said that in the nine-one-one call she didn’t appear to be out of breath.”
After several objections and the judge’s rulings, Portale moved on to the moment when Investigator Moscato had asked Angelika if she wanted to speak to one person alone.
“Now, at that point, did you go somewhere with Miss Graswald alone or did they leave?”
“They left.”
“They left you sitting there?”
“Correct.”
“At that point, did you advise Miss Graswald of her constitutional right to remain silent?” Portale asked.
“No.”
“Did you advise her that she had the right to an attorney?”
“No.”
“At this point, did you remind her of her Miranda Rights?”
“No.”
“And you know the Miranda Rights, yes?”
“Of course.”
The defense fell into a rut of serial repetition, the state fired one objection after another, and the judge sustained each one. Finally, Freehill called it a day, recessing the court until the next morning.
CHAPTER TWENTY-NINE
The Huntley Hearing had emotionally exhausted Vince’s family members as if it were the trial itself. Now, on the final day, they fervently hoped this step would be completed within hours, but they’d grown accustomed to delays that dragged the process on and on. They were filled with anxiety that this would happen yet again and make their never-ending quest for justice a journey that would never reach its destination.
Richard Portale began the morning by handing the judge copies of Court of Appeals case law, in an attempt to block the introduction of Angelika’s taped interrogation at trial. Prosecutor Byrne contended that the same case law proved that all the state needed to submit was a witness to authenticate the recording, and argued that their witnesses had done just that. The judge ended the discussion by saying he would allow both sides to submit any additional arguments or materials on the issue.
With that temporarily settled, Investigator Donald DeQuarto returned to the stand to continue his cross-examination by Portale.
“You testified that, on Bannerman’s Island April 29, 2015, when you were seated on the trail—yourself, Investigators Moscato and DaSilva, and my client—that a volunteer had come up to speak with Miss Graswald; is that correct?”
“Yes.”
“And how many times did that volunteer come up to speak with Miss
Graswald at that time?”
“One time.”
“Had there been other times that that volunteer had come up?”
“Yes,” DeQuarto conceded.
“How many other times?”
“One other time.”
“One other time?”
“Once on the trail and once on the—”
“So, two, total?” Portale interrupted.
“Yes.”
“Are you sure?”
“Yes.”
Byrne objected. “Asked and answered from yesterday and asked and answered from today.”
“It seems that way, Mr. Portale,” the judge said. “If you have something that differs, just proceed on that.”
Portale moved on. “What was the name of the volunteer?”
“I believe her first name was Susan.”
“Did you speak to her on the island?”
“No.”
“Did you speak to her at some point afterward?”
“Yes.”
“Do you know her last name?”
“McCardell.”
“Where did you speak to her after that?”
“Objection, Your Honor,” Byrne cut in again. “No relevance to this proceeding whatsoever as to the voluntariness of the defendant’s statements.”
“Really?” Portale asked. “Because this woman, he’s saying, came over to check on Miss Graswald to see if she’s okay, so that’s actually pretty relevant.”
“What happened to her is already on the record,” Byrne argued.
“What was her demeanor, what was her mind-set?” Portale countered.
Judge Freehill asked, “So, are you calling her to see if she thought Miss Graswald was in custody?”
“If I may,” Portale answered, “we have observations from three New York State Police officers, those are the actual guys doing the interrogating, so, yeah, we actually are entitled to call Ms. McCardell, if we can find her, to testify as a witness. Defense cannot call witnesses that can testify to their observations? Only the government is allowed to call witnesses, is that what we are going to do?”
The situation devolved into a bitter argument, leading the judge to ask the clerk to read the initial question back to the court. Upon hearing it again, the judge ruled that it could be answered. DeQuarto said that he spoke to Susan later at the state police barracks.
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