Direct examination of Kato Kaelin (afternoon, part 2)

📄 Direct examination of Kato Kaelin (afternoon, part 2) — Wednesday, March 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\22\DIRECT-EXAMINATION-OF-KATO-KAE.DOC

TRIAL

▲ Day 43 of 167

◀ Sidebar (2) Direct examination of Kato Kaelin (afternoon, part 3) ▶

Witness: Brian "Kato" Kaelin
Examiner: Marcia Clark
Called by: Prosecution • Date: Wednesday, March 22, 1995 • Utterances: 179

Marcia Clark resumed direct examination of Brian 'Kato' Kaelin, walking through his activities after OJ Simpson departed for the airport around 11:15 PM. Kaelin described calling Rachel Ferrara back (having nervously told her to 'start worrying' if he didn't call within 10 minutes after the thumps), receiving a call-waiting call from OJ instructing him to set the house alarm, and then staying on the phone with Rachel until about 1:00 AM. Kaelin also testified to hearing the Ashford gate phone ringing repeatedly during the night at around 3:30-4:00 AM — a detail with potential significance for the timeline.

# 1

THE COURT: ENOUGH OF THAT, COUNSEL. ANYTHING WE NEED TO DISCUSS BEFORE WE INVITE THE JURORS? ALL RIGHT. DEPUTY MAGNERA, LET'S HAVE THE JURORS, PLEASE. (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

# 2 THE COURT:

THANK YOU, LADIES AND GENTLEMEN. PLEASE BE SEATED. GOOD AFTERNOON, LADIES AND GENTLEMEN.

# 3 THE JURY:

GOOD AFTERNOON.

# 4 THE COURT:

ALL RIGHT. LET THE RECORD REFLECT THAT THE JURY HAS NOW REJOINED US, THAT MR. BRIAN KAELIN IS AGAIN ON THE WITNESS STAND UNDER DIRECT EXAMINATION BY MISS CLARK.

BRIAN KATO KAELIN, THE WITNESS ON THE STAND AT THE TIME OF THE LUNCH RECESS, RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:

# 5 THE COURT:

GOOD AFTERNOON, MR. KAELIN.

# 6 BRIAN "KATO" KAELIN:

GOOD AFTERNOON.

# 7 THE COURT:

YOU ARE REMINDED YOU ARE STILL UNDER OATH, SIR. MISS CLARK, YOU MAY RESUME WITH YOUR DIRECT EXAMINATION.

# 8 MS. CLARK:

THANK YOU, YOUR HONOR. GOOD AFTERNOON.

# 9

DIRECT EXAMINATION (RESUMED)

# 10

BY MS. CLARK:

# 11 Q:

I THINK WHERE WE LEFT OFF, MR. KAELIN, IS THAT THE DEFENDANT LEFT IN A LIMOUSINE AT ABOUT 11:15 AND YOU INDICATED THAT YOU WENT BACK TO YOUR ROOM; IS THAT RIGHT?

# 12 A:

YES.

# 13 Q:

AND WHEN YOU WENT BACK TO YOUR ROOM, SIR, WHAT DID YOU DO?

# 14 A:

OKAY. I FOLLOWED THE PATH TO MY ROOM. I WENT IN -- I WAS IN MY ROOM AND I RETURNED MY CALL TO RACHEL.

# 15 Q:

OKAY. WHAT DO YOU MEAN YOU RETURNED YOUR CALL TO RACHEL?

# 16 A:

WELL, BECAUSE I HAD SAID I WAS GOING TO CALL HER BACK. I WAS GOING TO GO OUTSIDE. I SAID, "I'LL CALL YOU BACK WITHIN 10 MINUTES," I SAID.

# 17 Q:

WHEN YOU -- WHEN YOU TOLD HER THAT, THAT WAS -- YOU HAD TOLD HER YOU WERE GOING TO CALL HER BACK WITHIN 10 MINUTES, THAT'S WHEN YOU HAD HEARD THE THUMPS?

# 18 A:

YES.

# 19 Q:

DID YOU TELL HER WHAT TO DO IF YOU DID NOT CALL HER BACK WITHIN 10 MINUTES?

# 20 MR. SHAPIRO:

OBJECTION. LEADING.

# 21 THE COURT:

SUSTAINED.

# 22 Q:

BY MS. CLARK: WHAT ELSE DID YOU SAY ABOUT CALLING BACK AFTER 10 MINUTES?

# 23 A:

I MADE A COMMENT LIKE, "START TO WORRY," JUST JOKING COMMENT.

# 24 Q:

WERE YOU JOKING?

# 25 A:

WELL, IT WAS A NERVOUS JOKE.

# 26 Q:

OKAY. AND WHEN YOU TOLD HER THAT -- SO AFTER THE DEFENDANT LEFT FOR THE AIRPORT, WERE YOU IN A HURRY TO CALL HER BACK?

# 27 A:

YES.

# 28 Q:

AND WHY IS THAT?

# 29 A:

WELL, BECAUSE I KNOW THAT MY LAST DIALOGUE WITH HER WAS THAT I WAS GOING TO CALL HER. SO I KNOW SHE WAS PROBABLY WONDERING WHY I HAVEN'T CALLED HER. SO I CALLED HER RIGHT AWAY.

# 30 Q:

OKAY. HAD YOU TOLD HER WHAT TO DO IF YOU DIDN'T CALL HER BACK IN 10 MINUTES BESIDES START WORRYING?

# 31 A:

NO.

# 32 MR. SHAPIRO:

OBJECTION. ASKED AND ANSWERED.

# 33 THE COURT:

OVERRULED. YOU CAN ANSWER THE QUESTION.

# 34 Q:

BY MS. CLARK: HAD YOU TOLD HER -- OTHER THAN TO START WORRYING IF YOU DIDN'T CALL BACK WITHIN 10 MINUTES, DID YOU TELL HER TO DO ANYTHING IF YOU DIDN'T CALL BACK?

# 35 A:

NO.

# 36 Q:

DO YOU RECALL TESTIFYING AT THE PRELIMINARY HEARING IN THIS MATTER?

# 37 A:

TO THE LAST QUESTION OR TO STATEMENTS?

# 38 Q:

DO YOU RECALL TESTIFYING CONCERNING WHAT YOU TOLD RACHEL TO DO IF YOU DID NOT CALL BACK WITHIN 10 MINUTES?

# 39 A:

NO, I DON'T REMEMBER.

# 40 MS. CLARK:

MAY I HAVE A MOMENT, YOUR HONOR?

# 41 (BRIEF PAUSE.)

# 42 MS. CLARK:

DIRECT COURT AND COUNSEL TO PAGE 70 OF THE GRAND JURY TRANSCRIPT AND PAGE 106 OF THE PRELIMINARY HEARING. EXCUSE ME ONE MOMENT. AND --

# 43 Q:

BY MS. CLARK: OKAY. DO YOU RECALL TESTIFYING AT THE PRELIMINARY HEARING AND BEFORE THE GRAND JURY IN THIS MATTER, SIR?

# 44 A:

YES.

# 45 Q:

TO WHAT YOU'VE BEEN TESTIFYING TO BEFORE THIS JURY?

# 46 A:

YES.

# 47 Q:

SAME SUBJECT MATTER; IS THAT RIGHT?

# 48 A:

YES.

# 49 Q:

AND DO YOU RECALL TESTIFYING TO YOUR STATE OF MIND AT THE TIME THAT YOU TOLD RACHEL FERRARA TO START WORRYING IF SHE DOESN'T HEAR FROM YOU IN 10 MINUTES?

# 50 A:

YES, I SAID THAT.

# 51 Q:

AND DO YOU RECALL WHAT YOU SAID YOUR STATE OF MIND WAS AT THAT TIME?

# 52 A:

UH, SCARED. YES.

# 53 Q:

AND WHAT ELSE?

# 54 A:

UMM, I DON'T REMEMBER.

# 55 Q:

DO YOU RECALL TESTIFYING THAT YOU WERE WORRIED?

# 56 A:

OH, SCARED AND WORRIED. OKAY.

# 57 Q:

AND WHEN YOU WENT BACK TO CALL RACHEL FERRARA, APPROXIMATELY HOW LONG HAD IT BEEN SINCE YOU HUNG UP THE PHONE WITH HER TO GO AND INVESTIGATE THE SOUTH PATHWAY WHEN YOU CALLED HER BACK AFTER THE DEFENDANT LEFT FOR THE AIRPORT?

# 58 A:

I GUESS IT WOULD BE ABOUT 20 TO 25 MINUTES.

# 59 Q:

SO CAN YOU ESTIMATE FOR US WHAT TIME IT WAS WHEN YOU FINALLY CALLED HER BACK?

# 60 A:

HAD TO BE ABOUT 11:15, 11:20.

# 61 Q:

ALL RIGHT. AND DID SOMETHING INTERRUPT THE PHONE CALL WITH RACHEL?

# 62 A:

YES. DURING THE PHONE CALL --

# 63 Q:

WHAT HAPPENED?

# 64 A:

-- A CALL WAITING BEEPED.

# 65 Q:

YOU HAVE CALL WAITING ON YOUR PHONE?

# 66 A:

YES.

# 67 Q:

AND WHAT HAPPENS WHEN YOU'RE TALKING ON THE PHONE AND ANOTHER CALL COMES IN?

# 68 A:

IT MAKES A BEEP, A NOISE.

# 69 Q:

OKAY. AND THAT OCCURRED ABOUT WHAT TIME?

# 70 A:

AT ABOUT 11:40 I THOUGHT.

# 71 Q:

AND WHO WAS ON THE OTHER LINE?

# 72 A:

UMM, O.J.

# 73 Q:

AND WHAT DID HE SAY TO YOU?

# 74 A:

THAT HE FORGOT TO ALARM THE HOUSE, THAT I SHOULD ALARM IT.

KEY QUOTE

# 75 Q:

AND DID YOU -- HAD YOU EVER DONE THAT BEFORE?

# 76 A:

NO.

# 77 Q:

SO WHAT DID YOU DO WHEN HE ASKED YOU TO ALARM THE HOUSE?

# 78 A:

WELL, HE TOLD ME A CODE AND HE SAID THERE'S BUTTONS THAT YOU PRESS. SO I WROTE DOWN THE CODE AND THEN I WENT -- I TOLD RACHEL AFTER I HUNG UP, I SAID I HAVE TO GO AND ALARM THE HOUSE.

# 79 Q:

SO YOU TOLD THE DEFENDANT AFTER HE GAVE YOU THE CODE THAT YOU WOULD GO AND DO IT?

# 80 A:

YES.

# 81 MR. SHAPIRO:

YOUR HONOR, I'M GOING TO OBJECT --

# 82 Q:

BY MS. CLARK: THEN WHAT HAPPENED --

# 83 THE COURT:

HOLD ON.

# 84 MR. SHAPIRO:

-- OBJECT TO REPEATING THE SAME ANSWER.

# 85 MS. CLARK:

IS THAT A LEGAL OBJECTION?

# 86 THE COURT:

YES. IT'S NOT A QUESTION.

# 87 MS. CLARK:

IT'S FOUNDATIONAL TO THE QUESTION.

# 88 THE COURT:

PROCEED.

# 89 Q:

BY MS. CLARK: YOU HUNG UP WITH RACHEL AND THEN WHAT DID YOU DO?

# 90 A:

OKAY. WHEN I HUNG UP ON O.J. ON CALL WAITING AND I HUNG UP ON RACHEL AND SAID I WOULD BE BACK, I WENT TO ALARM THE HOUSE.

# 91 Q:

AND WHERE DID YOU GO TO DO THAT?

# 92 A:

I HAD TO GO TAKE THE PATH AGAIN TO THE FRONT DOOR. TO THE LEFT OF THE FRONT DOOR IS A PAD WITH BUTTONS, AND I PRESSED THE ALARM.

# 93 Q:

OKAY. AND THAT PATH THAT YOU'RE TALKING ABOUT, SIR, IS THAT -- WHERE DOES THAT RUN ALONG? WHAT STREET DOES THAT --

# 94 A:

YOU PASS ASHFORD. IT'S THAT SAME -- THE PATH I'D BEEN TAKING.

# 95 Q:

AND THE CONTROL PAD WAS OUTSIDE THE FRONT DOOR?

# 96 A:

OUTSIDE THE FRONT DOOR.

# 97 Q:

AND YOU SET THE ALARM AT THAT TIME THEN?

# 98 A:

YES, I DID.

# 99 Q:

DID YOU NOTICE ANY DIFFERENCE IN THE LIGHT? YOU EARLIER INDICATED YOU SAW THAT THE ALARM LIGHT WAS GREEN. AFTER YOU SET IT, WHAT COLOR WAS IT?

# 100 A:

AFTER YOU SET IT, HE SAID TO WAIT A FEW SECONDS, AND THEN IT GOES RED. AND I WAITED UNTIL IT WAS RED. AND WHEN I WAS FINISHED WITH THAT, I WENT RIGHT BACK TO THE ROOM.

# 101 Q:

AND WHAT DID YOU DO WHEN YOU WENT BACK TO THE ROOM?

# 102 A:

I CALLED RACHEL BACK.

# 103 Q:

AND WHAT DID YOU TALK TO WITH HER ABOUT THAT TIME?

# 104 A:

I JUST SAID THAT THAT WAS O.J. ON THE CALL WAITING, THAT I ALARMED THE HOUSE AND I JUST SAID, YOU KNOW, THE THUMPING, I WAS JUST GOING, GOD, THIS IS WEIRD.

# 105 Q:

AND YOU TALKED AGAIN ABOUT THE NOISES, THE THUMPS THAT YOU HEARD ABOUT 10:40, 10:45?

# 106 A:

YES, BECAUSE I NEVER WENT BACK.

# 107 Q:

SO YOU WERE -- WERE YOU STILL WORRIED ABOUT THOSE NOISES?

# 108 A:

YES.

# 109 Q:

WERE YOU STILL WORRIED THAT THERE MIGHT BE SOMEBODY BACK THERE?

# 110 MR. SHAPIRO:

OBJECTION. LEADING.

# 111 THE COURT:

SUSTAINED.

# 112 Q:

BY MS. CLARK: WHAT WERE YOU WORRIED ABOUT?

# 113 A:

WELL, I DON'T KNOW ABOUT BACK, BUT THERE WAS A NOISE THAT SOMEONE MIGHT BE AROUND.

# 114 Q:

UH-HUH. SOMEWHERE?

# 115 A:

SOMEWHERE.

# 116 Q:

NEAR THE HOUSE?

# 117 A:

SOMEWHERE ON THE PROPERTY.

# 118 Q:

HOW LONG DID YOU STAY ON THE PHONE WITH RACHEL AT THIS POINT?

# 119 A:

OH, AFTER THE -- AFTER I CALLED HER BACK AGAIN?

# 120 Q:

RIGHT. AFTER YOU SET THE ALARM, CALLED HER --

# 121 A:

BOY, I THINK I STAYED ON -- I STAYED ON PROBABLY HOUR, HOUR AND A HALF.

# 122 Q:

OKAY.

# 123 A:

IT WAS PRETTY LONG.

# 124 Q:

SO WERE YOU STILL ON THE PHONE WITH HER AT MIDNIGHT?

# 125 A:

YES, I THINK I WAS.

# 126 Q:

DO YOU RECALL HEARING ANY VOICES ON THE PROPERTY AROUND MIDNIGHT?

# 127 A:

NO.

# 128 Q:

OR ANY OTHER SOUNDS LIKE THOSE THUMPING SOUNDS?

# 129 A:

NO.

# 130 Q:

OR ANY FOOTSTEPS?

# 131 A:

NO.

# 132 Q:

WERE YOU STILL ON THE PHONE WITH HER AT 12:30?

# 133 A:

I BELIEVE SO.

# 134 Q:

DID YOU HEAR CHACHI BARKING?

# 135 A:

NO.

# 136 Q:

AT ANY POINT THAT NIGHT, DID YOU HEAR CHACHI BARK?

# 137 A:

NO.

# 138 Q:

CAN YOU TELL US WHAT THE WEATHER WAS LIKE THAT NIGHT?

# 139 A:

IT WAS LIKE 65 DEGREES. IT WAS SORT OF COOL AND IT WAS A LITTLE MIST, NOT -- SEMI FOG.

# 140 Q:

SEMI FOG?

# 141 A:

I -- WASN'T, YOU KNOW, A DENSE FOG OR ANYTHING. IT JUST SEEMED LIKE IT WAS JUST A LITTLE BIT CLOUDY. THE -- IT WASN'T A CLEAR NIGHT.

# 142 Q:

UH-HUH. WAS IT A LITTLE BIT MISTY?

# 143 A:

YEAH. A LITTLE MISTY.

# 144 Q:

SO WERE YOU HOT OR SWEATING THAT NIGHT?

# 145 A:

NO.

# 146 Q:

WHEN YOU WENT OUT WITH MR. SIMPSON TO MC DONALD'S FOR FOOD, WAS HE HOT OR SWEATY?

# 147 A:

AS BEST I COULD TELL, NO.

# 148 Q:

ALL RIGHT. ABOUT WHAT TIME DID YOU END YOUR PHONE CALL WITH RACHEL?

# 149 A:

I THINK ABOUT 1:00 A.M.

# 150 Q:

AND ABOUT WHAT TIME DID YOU GO TO SLEEP?

# 151 A:

I WENT TO TURN THE LIGHT OFF ABOUT 1:30 A.M.

# 152 Q:

OKAY. HOW DID YOU SLEEP THAT NIGHT?

# 153 A:

IT WAS TOSS AND TURNING. NOT -- NOT A GOOD SLEEP.

# 154 Q:

AND WHY WAS THAT?

# 155 A:

I GUESS I -- I WAS WORRIED. I JUST WASN'T SLEEPING WELL. YOU KNOW, I HAD THOUGHTS IN MY HEAD THAT IT WASN'T -- YOU KNOW, I STILL HAD THOUGHTS OF THE NIGHT, THE NOISE, AND I JUST WASN'T SLEEPING.

# 156 Q:

YOU HAD THOUGHTS OF THE NOISE, YOU MEAN THE THUMPS?

# 157 A:

THE THUMPS.

# 158 Q:

WAS THE -- DID YOU HEAR ANY NOISES THAT DISTURBED YOUR SLEEP?

# 159 A:

NO.

# 160 Q:

CAN YOU TELL US WHAT THE -- WHEN THE -- WHEN THE BUZZER AT -- AT THE ASHFORD GATE IS PRESSED TO BE OPENED --

# 161 A:

YES.

# 162 Q:

-- SOMEBODY IS STANDING OUTSIDE THE GATE, WANTS TO GET IN, THEY PUSH THAT BUTTON, WHAT SOUND DOES IT MAKE INSIDE THE HOUSE?

# 163 A:

THE PHONES RING.

# 164 Q:

IT'S A PHONE RINGING?

# 165 A:

A PHONE THAT RINGS, YES.

# 166 Q:

DO YOU RECALL HEARING THAT SOUND OF THAT PHONE -- OF THE PHONE RINGING IN THE MAIN HOUSE AFTER YOU WENT TO SLEEP THAT NIGHT?

# 167 A:

YES.

# 168 Q:

CAN YOU EXPLAIN -- CAN YOU DESCRIBE WHAT YOU HEARD?

# 169 A:

DURING THE NIGHT, I DIDN'T KNOW THE TIME, I WAS TOSSING -- I DIDN'T THINK IT WAS REAL, BUT IT WAS -- WAS A CONSTANT RING, THE PHONE WAS RINGING AND RINGING. AND IT'S -- IT HAS A DIFFERENT RING TO IT WHEN THE -- IT'S A BUSINESS PHONE. AND IT WAS RINGING AND RINGING AND I WAS JUST GOING, OH, MY GOD, WHO'S CALLING, AND IT WAS JUST -- IT CONTINUALLY JUST RINGING AND RINGING.

KEY QUOTE

# 170 Q:

UH-HUH. AND THIS WAS AFTER YOU HAD GONE TO SLEEP AT 1:30?

# 171 A:

YES.

# 172 Q:

DO YOU KNOW EXACTLY WHAT TIME IT WAS WHEN YOU HEARD THAT?

# 173 A:

I DON'T KNOW THE EXACT TIME, BUT I WOULD GUESS 3:30 OR 4:00 POSSIBLY.

# 174 Q:

OR 5:00, 6:00? DO YOU KNOW?

# 175 A:

NO, I DON'T KNOW THE EXACT TIME.

# 176 Q:

OKAY. DID YOU LOOK AT YOUR CLOCK OR ANYTHING WHEN YOU HEARD THE RINGING?

# 177 A:

NO.

# 178 Q:

YOU STAYED IN BED?

# 179 A:

YES.

Temperature

procedural

Key Quotes (4)

Brian Kaelin

I MADE A COMMENT LIKE, 'START TO WORRY,' JUST JOKING COMMENT... WELL, IT WAS A NERVOUS JOKE.

Establishes Kaelin's state of mind immediately after the thumps — frightened enough that his reassurance to Rachel was described as a 'nervous joke,' not genuine humor.

Brian Kaelin

THAT HE FORGOT TO ALARM THE HOUSE, THAT I SHOULD ALARM IT.

OJ called Kaelin from the limo at approximately 11:40 PM to have him set the alarm — a mundane detail that nonetheless pins a timestamped contact point in the timeline.

Brian Kaelin

I JUST WASN'T SLEEPING WELL. YOU KNOW, I HAD THOUGHTS IN MY HEAD THAT IT WASN'T -- YOU KNOW, I STILL HAD THOUGHTS OF THE NIGHT, THE NOISE, AND I JUST WASN'T SLEEPING.

Reinforces that the thumps genuinely disturbed Kaelin and were not something he dismissed at the time, bolstering the prosecution's effort to establish that the noises were significant.

Brian Kaelin

DURING THE NIGHT, I DIDN'T KNOW THE TIME... IT WAS A CONSTANT RING, THE PHONE WAS RINGING AND RINGING... IT CONTINUALLY JUST RINGING AND RINGING.

The gate phone ringing insistently in the early morning hours (approx. 3:30-4:00 AM) likely corresponds to police or others arriving at the estate — a key marker in the discovery timeline.

Evidence (4)

Informal

Grand Jury transcript, page 70 — Kaelin's prior testimony about his state of mind regarding the 10-minute callback to Rachel

referenced to refresh/impeach witness memory

Informal

Preliminary Hearing transcript, page 106 — same subject matter as grand jury reference

referenced to refresh/impeach witness memory

Informal

Ashford gate buzzer/phone system — rings inside the house when someone presses the gate intercom

discussed to establish late-night ringing heard by Kaelin

Informal

OJ Simpson's house alarm system — green light (unarmed) turns red (armed) after code entered

discussed to establish Kaelin's actions after OJ's call-waiting call

Notable Exchanges (2)

Marcia Clark•Robert Shapiro•Lance A. Ito

Shapiro objected that Clark was 'repeating the same answer' as preamble to a question; Ito noted 'it's not a question' and Clark defended it as foundational, with Ito ultimately allowing her to proceed.

mildly combative

Marcia Clark•Brian Kaelin

Clark asked whether OJ was 'hot or sweaty' when they went to McDonald's — a subtle prosecution effort to undercut any defense claim that OJ had been physically active (and thus sweating) earlier in the evening rather than during the murders.

strategic

Light Moments (1)

Brian Kaelin

Kaelin described telling Rachel to 'start to worry' if he didn't call back as 'just a joking comment' then immediately walked it back to 'a nervous joke' — an inadvertently self-contradicting moment.

Credibility Attacks (1)

⚔ Brian Kaelin

prior inconsistent statement / memory refresh

Clark directed the court to Grand Jury transcript page 70 and Preliminary Hearing page 106 when Kaelin claimed not to remember what he told Rachel about the 10-minute callback — using his own prior testimony to pin down his stated state of mind ('scared and worried').

Witness Demeanor

(BRIEF PAUSE.) — Clark paused to locate prior transcript references before continuing impeachment attempt

Objections

4 objections (2 sustained, 2 overruled)

Proceeding 5371 • 179 utterances • Prosecution witness

Criminal Trial

Department 103