Day 5: Of texts and deletions

Verizon messages raise questions in Trappler case

WATKINS GLEN, April 26 -- "I've said all along," District Attorney Joe Fazzary was saying Thursday after the fifth day of testimony in the Alice Trappler murder trial, "that this case is built on text messages and gun evidence. I'll tie all of this up in the next three days."

After a day Thursday in which text messages were read aloud from the witness stand in Schuyler County Court by telephone and computer crime experts at the behest of both Fazzary and defense attorney Susan BetzJitomir, the trial finished the week with both sides taking a breather Friday before heading into the meat of the case next week.

Fazzary said he plans to wrap up his case Wednesday. On either that day or one of the two previous, he will call to the stand Nathan Hand, stepbrother of the late Thomas Borden. Borden was the alleged shooter in the killing at about 11 p.m. on April 19, 2012, of Daniel Bennett, 30, in the Town of Dix residence where Bennett was living with his father.

Hand last September pleaded guilty to 1st Degree Manslaughter, reduced from 2nd Degree Murder with the understanding that he would testify against Trappler. Police said he was with Borden at the Bennett residence during the murder, serving as a lookout.

Trappler faces charges of 2nd Degree Murder, 1st and 2nd Degree Burglary and 2nd Degree Conspiracy in connection with the death of Bennett -- a former boyfriend with whom she had a child, Lily, in early November 2011.

The defendant, a resident of Steuben County, is alleged to have conspired with her ex-husband, Borden, and Hand, both of Corning, to have Bennett killed over a custody battle involving the child. Trappler is not alleged to have been present at the killing.

The testimony Thursday, Fazzary said, strengthened his case because it showed -- by comparing Verizon records with those obtained through a "dump" of data from Trappler's phone -- that there were a couple of missing calls in that phone. "The inference is that they were deleted," he said, noting that they were "key texts in this case. We'll let the texts speak for themselves."

BetzJitomir, meanwhile, had a different take. Very upbeat after Thursday's testimony by nine witnesses, she said she thought the day "went really well. The only thing they proved was that Tom's sneakers were Tom's sneakers" -- a reference to a pair of sneakers worn by Thomas Borden that were buried in Pinnacle State Park after the Bennett murder and recovered there later by investigators led to the park by Nathan Hand.

BetzJitomir said -- contrary to Fazzary's take -- that the text messages between Trappler and Borden that were read into the record haven't pointed a finger of guilt at Trappler. "She and Tom texted all the time," she said. "They were friends. Friends text each other."

Any questions raised by the text testimony will, in any event, be addressed by Trappler herself when she takes the stand, said BetzJitomir. "We're gonna put Alice on the stand and she'll explain the texts and what they meant."

That might happen late next week, at the end of the defense's case. "Alice will be the last witness," BetzJitomir said. "I think we'll be done by Friday, and then it would probably go to the jury on the following Monday."

The lineup of witnesses Thursday and what they discussed follows.

1. Scott Johnson, a Verizon Wireless Northeast Area executive who said he handles "custodial records cases like this one." He explained that Verizon keeps records for a period of time that include not only lists of incoming and outgoing calls, but actual text messages exchanged on a subscriber's account. This is done, he said, "for billing purposes." He said he provided authorities upon request with text message records running from April 15 to April 20, 2012. That latter day was the day following the Bennett murder.

"The phone number targeted," he said, was 607-329-3161 under the name of Thomas Borden, the alleged shooter and Trappler's ex-husband. Fazzary had Johnson read entries by and to "the subscriber," Borden, in exchanges with another phone number, 215-285-2762. Johnson did not say whose number that was; it was not a Verizon subscriber. Later testimony from an AT&T representative showed that "the person finanacially responsible for the number was Alice Trappler."

An entry from April 19, 2012 at 5:52 a.m. sent from Trappler's phone to Borden's read: "Hi ... Good morning ... He knows there's court. Wrote about it."

Another from her phone to his at 7:20 p.m. said: "Just so you know, after yesterday and today I'm OK with it." And another from her phone at 8:49 read: "Just talked to Jeff. A--hole's been fishing." The Jeff who was mentioned was Jeff Besley, currently an inmate at Schuyler County Jail who testified later in the day Thursday.

Another message from Trappler's phone to Borden's at 8:53 p.m. on April 19 referred to Jeff again, saying "he thought he's staying in the house on Pearl Street."

Subsequent calls from Borden to Trappler's phone came at 9:10 and 9:31 p.m., Johnson's testimony showed. In the first call, Borden texted "Call me now," and in the second: "Watching TV now. May be asleep in an hour."

At 9:38, a text from Trappler's phone to Borden's said: "Think we should stop texting. Towers traceable? You tried to serve. They weren't home ... text me from Corning."

At 11:17, Borden texted back: "I'm just leaving work."

Then, at 4:29 a.m., a message from Trappler's phone read: "Wonder if he will show up this time. LOL."

On cross examination, BetzJitomir had Johnson read a text from 4:16 p.m. April 19 from Borden to Trappler's phone: "And I know you might not want to hear this, but I still love you as much as the day we were married."

Then:

--At 4:22 p.m. on April 19 from Borden to Trappler's phone: "Wtf"

--At 4:23 p.m. from Borden to Trappler's phone: "Sorry. Wrong person."

--At 9:54 p.m. from Borden to another phone number, 607-661-2339: "I'm hunting."

"That's not the same number," said BetzJitomir to Verizon's Johnson. Responded Johnson: "No, it's not."

"Do you have any idea whose number it is?" she asked.

"I don't offhand, no," he said.

--At 11:17 p.m. from Borden to Trappler's phone: "I'm leaving work."

--At 11:53 p.m. from the 2339 number to Borden: "Put my stuff in a bag and leave it in your room, please." (It ended with a smiley face.)

BetzJitomir then added three other calls from the 2339 number to Borden. One at 9:52 p.m. said "You want to go to Lando's?" Another at 10:08 p.m.: "Where are you?" And one at 10:24: "Almost to Lando's. Let's roll."

Amid all of this, there was talk about cell towers and how reliable it is that a call might go through the nearest one. It was unclear how that would work into the narrative in the days ahead.

2. Eric Vosburgh, AT&T retail store manager "here as custodian of records." He said AT&T does not retain copies of actual text messages -- but does record a list of incoming and outgoing phone calls and texts on a subscriber's account. He was handed a notebook by Fazzary that contained a record of calls to and from a phone number, 215-285-2762 -- which Vosburgh said was Trappler's. The records covered the period of April 15-22, 2012. Any calls erased on a phone will still be there in the AT&T records, he said.

At the DA's urging, Vosburgh recounted that on April 19, 2012, there was an exchange of a call and three texts between Trappler and Borden in a 28-minute period starting at 9:10 p.m.

On cross examination, it was determined that no further calls or texts went out from Trappler's phone to Borden's for the remainder of the day.

3. Frank Ryczak, a Home Depot Asset Protection Manager. He said that at the request of authorities, he had provided a video of a purchase at his store of "a 6-mill bastard file." They showed the purchaser, but he was not identified in testimony.

4. Robert Klinkman, a New York State Police Investigator out of Canandaigua. He said he had participated in the search of the Trappler home shared at the time by Alice and her mother in Rathbone. He said he searched the office of the house, and "noticed printed Facebook pages referencing Daniel Bennett." Those were seized, and he identified the packet of them when shown them by Fazzary.

5. Jeff Besley, 22, an inmate in the Schuyler County Jail after violating probation following a burglary conviction. He said he was a friend of "Danny" Bennett's and knew the defendant, Trappler, who he said had asked him in 2011 to testify against Bennett in a custody battle between Trappler and Bennett. Besley agreed to do so. When asked by Fazzary why he had agreed to, Besley said because "I knew Danny had issues of his own to resolve -- drinking and partying. I didn't think custody would be the best thing for him. I thought visitation would be a good thing for Danny."

Besley and Trappler exchanged occasional texts, including one from her to him on April 10, 2012 asking him to "please contact me. I want to know if you'll testify against Dan." He said he responded with a text that read: "Call me."

As of April 19, asked Fazzary, "was it your intention to testify against Dan?" Besley said it was, but that in order to do so he needed a ride to reach Family Court in Steuben County, since he had no vehicle and was in Watkins Glen. Trappler, he said, "was sending a guy she knew to pick me up at Burger King." It was a person named Tom, who drove a blue Ford pickup truck -- an apparent reference to Borden, a man Besley said he had never met.. He said he also let Trappler use his Facebook account to access Bennett's page, since Bennett had blocked her from doing so.

At 8:40 p.m. on the 19th, Besley said, there was another text between him and Trappler, though he couldn't remember who initiated it. "She asked if I was afraid to go and testify -- if I was going to back out." And, he said, she asked where Bennett was living. "I told her (he was) on Pearl Street with his Dad and talking about leaving."

Besley said he had still been planning to testify in Family Court the next day, but that on the morning of that day, April 20th, he received a call from Trappler that was "real brief. She said court was canceled." That call was between 6 and 7 a.m., he added. She didn't say anything about Bennett's death; he learned about it a short time later when told by a friend. He said he texted Trappler "around noon" and asked if she knew about the death. "Four or five" hours later, he said, Trappler responded with a text that read: "Hi Jeff. How are you?"

At some point thereafter, he added, he talked to her on the phone, and "I brought up about Danny. She said she felt bad for Frank (Bennett's father). She seemed calm, real collected about the whole thing" and told him investigators had been out to see her and would be "coming to talk to me."

6. Richard Brunt, of the New York State Forensic Investigation Center in Albany, a DNA analyst and hair evaluator. He studied several items to determine if there was any blood on them. He examined the shotgun shell casing found near Daniel Bennett's body, three live shells discovered along Catlin Hill Road a half-mile away, and the shotgun used in the slaying. All were negative.

7. Laurie Pasqualino of the New York State Forensic Investigation Center, who examines "items of evidence to develop DNA profiles." She analyzed the shotgun, ammunition, and a pair of cuttings from the sneakers discarded by Thomas Borden in Pinnacle State Park after the murder. She was working with DNA control samples from Borden, Nathan Hand and Daniel Bennett. As for the gun, she said: "No, there was no profile from any swabs from the gun." The shells had partial profiles, but "they were insufficient to compare to any control profile."

The left sneaker, however, yielded enough information to rule it "was consistent with the DNA from Borden."

8. Amy Crosier, a New York State Police Investigator and computer crime specialist who conducts "cell phone, smart phone and computer extractions." She said she "received and analyzed" a smart phone that was owned by Trappler and a cell phone that had belonged to Daniel Bennett. She extracted information from Trappler's, but not from Bennett's since it had been soaked in blood.

The Trappler phone, she said, carried the phone number 215-235-2762 previously mentioned in other testimony. Fazzary said there were two calls after 9:10 p.m. on April 19, 2012 that were "more important than the others." He pointed to one in Verizon records from Thomas Borden to Trappler that said "Call me now," and one at 9:38 p.m. that referred to the cell towers being "traceable."

"Were they anywhere on this phone?" Fazzary asked.

"No, sir," said Crosier.

9. Allison Regan, a New York State Police Investigator assigned to the computer crimes unit in Canandaigua. She analyzed two phones seized from the residence being shared by Trappler and her mother, and "also Thomas Borden's phone." She also examined a computer from Doug Gross Construction, where Trappler had been employed. The Trappler phones were the same ones Crosier had examined, but were "re-examined for supplemental data" after the Canandaigua investigatory system was upgraded, Regan said. The thrust of her testimony was that she found four photographic images of Daniel Bennett on the computer and on one of Trappler's phones. But not on Borden's.

Regan said she had encountered Trappler before, when Regan was working out of the State Police Painted Post barracks and Trappler was trying to get Bennett charged in connection with a dispute that had resulted in some damage on Trappler's goat farm. "She asked me if I knew a Dan Bennett," said Regan. "She said he was a bad person, that she had some concerns and was trying to keep him from having anything to do with their child."

Next up: Testimony resumes Monday. Fazzary plans to wrap up the presentation of his case on Wednesday. BetzJitomir thinks her case will take two days after that.

Photos in text:

Top: Defendant Alice Trappler leaving court Thursday.

Second: Defense Attorney Susan BetzJitomir.

Bottom: District Attorney Joe Fazzary after Thursday's session. He is carrying a box holding the weapon -- a .12-gauge shotgun -- that was used to kill Daniel Bennett.

The Story from Day 1 may be found by clicking here.

The Story from Day 2 may be found by clicking here.

The Story from Day 3 may be found by clicking here.

The Story from Day 4 may be found by clicking here.

The Story from Day 6 may be found by clicking here.

The Story from Day 7 may be found by clicking here.

The Story from Day 8 may be found by clicking here.

The Story from Day 9 may be found by clicking here.

The Story from Day 10 may be found by clicking here.

The Story from Day 11 may be found by clicking here.

The Story from Day 12 may be found by clicking here.

The Story from Day 13 may be found by clicking here.

The Story from Day 14 may be found by clicking here.

The Story from Day 15 may be found by clicking here.

(All court stories by Charlie Haeffner)