DOVER – A public defender questioned accused murderer Seth Mazzaglia’s former live-in girlfriend extensively Wednesday morning about her actions and thoughts on the October 2012 night when a student died in their apartment, grilling her about numerous uncertainties and inconsistencies compared to her testimony last week and her statements to a grand jury in February 2013.
The questioning suggested a starkly different version of events – and a much greater role for the witness, Kathryn "Kat" McDonough, in the Oct. 9, 2012, death of 19-year-old Elizabeth “Lizzi” Marriott than what McDonough described in her direct testimony last week.
McDonough began her seventh day on the stand in Mazzaglia’s trial Wednesday morning.
Defense attorney Joachim Barth resumed his questioning about the moment when McDonough had testified she walked to a window of the Dover studio apartment that she and Mazzaglia shared while, McDonough said, Mazzaglia strangled Marriott from behind with a rope.
McDonough has testified that she went to the window overlooking the Bellamy River during the murder because it was a place she previously had gone to in times of stress.
“You went over to the window to hide what you had just done,” said Barth, who accused McDonough in opening statements May 28 of killing Marriott during a night of rough sex.
McDonough reiterated Wednesday that she “had no idea what to do” as Mazzaglia began to strangle Marriott.
“I had to get away from the murder. I didn’t think there was anything I could do to stop it,” McDonough said. “I was afraid that he would kill me if I tried to stop him.”
Barth questioned McDonough's decision to move toward a window and her lack of action while there.
“You did not go in the opposite direction, toward the door,” Barth said. “Your instincts for survival did not prompt you to scream out the open window as you stood in front of it. …Your instincts for survival did not prompt you to try to get the attention of neighbors directly across the river.”
McDonough said she was afraid Mazzaglia would try to hurt or kill her if she did.
“There were so many weapons in there,” McDonough said, referring to their apartment and listing swords, ropes, machetes and staffs used in martial arts. “(Mazzaglia) was a sensei, he obviously knew how to fight.”
Mazzaglia, 31, faces first- and second-degree murder charges in the death of Marriott, who was from Westborough, Mass.
According to testimony, Marriott died after a game of strip poker in the Dover apartment.
McDonough, 20, testified last week that she was sitting next to Marriott when Mazzaglia began strangling Marriott with a white cotton rope.
McDonough said Marriott had declined to participate in any sexual activities with her or Mazzaglia, and that after Mazzaglia choked Marriott, he raped her limp body for several minutes while fondling and insulting her.
Barth reminded McDonough that she told a grand jury in February 2013 – months before reaching a plea agreement with state prosecutors in July – that Mazzaglia asked her to take Marriott’s pulse after the murder, which he couldn’t do “because his hands were shaking so much.”
Barth said McDonough told the grand jury she checked Marriott’s pulse and then, referring to her response to Mazzaglia, said: “So I was just like, sorry, no pulse.”
Barth asked about her use of the word “sorry.” McDonough said Wednesday it was “a minor word.”
Barth again disagreed.
“Doesn’t that speak volumes?” Barth asked. “If you had just watched (Mazzaglia commit murder)….why would you tell him, ‘sorry, no pulse?’
“Isn’t that the word you would use if you had just caused a terrible accident,” and were checking at Mazzaglia’s urgings, Barth continued.
McDonough quietly refuted the claim.
"Did you use the word, like you swore to the grand jury you did?” Barth pressed.
“That’s just not a detail I can remember at the moment,” McDonough said.
Barth said McDonough told the grand jury that Mazzaglia then said to check for a pulse on her neck, after McDonough first tried Marriott’s ankle.
“He was trying to make sure she was really dead,” McDonough said. “He wasn’t panicked that I could see. He seemed pretty calm, relaxed – almost like he was enjoying it.”
Barth then asked McDonough about a moment after Marriott’s death when she was in the bathroom, their studio’s only other room, saying she was then dressed, near the exit and able to leave, but stayed.
“He was my world, I didn’t want to lose him,” McDonough said of Mazzaglia, after testifying that she had feared he would kill her minutes earlier that night.
“He was your world, (and) he was going to protect you from what you had just done,” Barth said.
Barth then asked McDonough about the phone call she made to Rochester resident Roberta Gerkin, a friend of Mazzaglia’s who testified earlier in the trial and came to the Sawyer Mills apartment that night with her boyfriend, Paul Hickok.
Barth noted that, according to testimony, Mazzaglia asked McDonough to make the call.
“He was adamant that you call (Gerkin), because he didn’t know what to do in the aftermath of what you had just done,” Barth said.
McDonough said she didn’t know why Mazzaglia asked her to call.
“He called a friend to help him figure out how to help you, correct?” Barth continued.
McDonough said that as Mazzaglia asked her to call Gerkin, he continued to hold the rope around Marriott’s neck.
“Even when her body wasn’t moving, he was still holding the rope around her neck,” she said. “Her body was kind of moving, but it was subtle, with movements that weren’t really noticeable.”
“Your claim is that literally while doing it…he adamantly wants witnesses to come down,” Barth said.
“I had so many conflicting thoughts,” McDonough said. “He said (to) call her, so I called her.”
Barth then noted that McDonough told the grand jury that she hadn’t wanted to call Gerkin at all. McDonough said she hadn’t wanted to call because she didn’t know Gerkin very well at that time.
“Under these circumstances, wouldn’t you want to call just about anybody?” Barth asked. “You didn’t want to call (Gerkin) because you didn’t know the consequences to you if somebody else came and saw what you had done.”
Barth pointed out that after calling Gerkin, McDonough also sent a text, “within minutes after witnessing what you claim was a homicide, right in front of your eyes.”
Barth said McDonough sent the text to Marriott’s phone.
According to Barth, with spelling unclear in the courtroom, it said: “Hey dahling, I expected you at 10. I passed out, lost track of time, you still coming?”
Barth asked McDonough about the seemingly light-hearted nature of the slang for “darling.”
“I was texting. It’s not like I was actually saying it,” McDonough said.
Barth said McDonough had “the audacity to ask: ‘Are you still coming?’”
“That was your idea, right?” he said of the text.
“I don’t remember,” McDonough replied.
Barth noted that when Gerkin and Hickok arrived at a parking lot near the apartment, it was McDonough who went down to see them, according to previous testimony.
“(Mazzaglia) had no problem with you being the one to go down and talk to (Gerkin and Hickok), because it was your self-interest that would prevent real disclosure,” Barth said. “You’re the one that went outside because it was you that had something to hide.”
McDonough has said that she forgot her keys and was locked out of the apartment, so she briefly got into a car with Gerkin and Hickok.
Barth noted that she didn’t express fear or alarm at that point, either.
“You got into their car and didn’t say, ‘Hey, let’s leave,’” he said to McDonough on Wednesday, the trial’s 11th
day at Strafford County Superior Court.
After then questioning McDonough about the process of disposing of Marriott’s body –which McDonough has said she and Mazzaglia wrapped in a tarp, put in a suitcase they had to tape shut and ultimately drove to Pierce Island in Portsmouth, where Mazzaglia pushed the body over a railing and McDonough moved it off of rocks and into the water – Barth asked about a comment McDonough mentioned to the grand jury in February 2013.
“You made a comment about (Marriott) going to Davy Jones’ locker,” Barth said Wednesday. “Because of your affinity for pirates.”
McDonough acknowledged making the comment and said she has long had an interest in sailing, pirates and all things nautical.
“When a sailor dies or a pirate dies, they would go to Davy Jones’ locker, and no matter what had happened or how they had died….they would be safe,” McDonough said on the stand. “That’s just what I was thinking – that she would be safe with Davy Jones.”
Earlier Wednesday morning, two FBI forensic examiners from Virginia testified about hair and DNA samples submitted to FBI labs by the state. Forensic examiners Joshua Friedman and Lara Adams said samples they tested matched Marriott’s DNA type. Adams cited a match with DNA samples taken from Marriott’s mother.
While the examiners declined to speak in absolutes, they testified that the matches all but confirmed, with a very high degree of probability, Marriott’s identity.
Prosecutors likely sought the testimony to confirm Marriott’s presence in Mazzaglia and McDonough’s apartment on the night of her death.