DOVER — The voice of accused murderer Seth Mazzaglia was heard at length for the first time in his ongoing trial Tuesday, as lawyers played a tape of him talking casually and lovingly with his former live-in girlfriend about marriage plans in a December 2012 phone call — while he was in jail.
“We can figure it out, and I say let’s do it. I’m all for that,” Mazzaglia, referring to marriage, said to Kathryn “Kat” McDonough in a recording of the call played by his defense. “I think that would be very important for us. I’m glad you approached me about that. I’ve certainly been trying to figure out how to approach you.”
Mazzaglia expressed encouragement to McDonough about their chances at a future together.
“We are a couple who can find a way — we are the aberration,” Mazzaglia said. “We may have to set some records here, but we are the aberration.”
Mazzaglia, 31, faces first- and second-degree murder charges in the Oct. 9, 2012, death of 19-year-old UNH student Elizabeth “Lizzi” Marriott, who was from Westborough, Mass.
According to testimony, she died after a game of strip poker in the Dover apartment that Mazzaglia and McDonough shared.
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.
In the trial’s opening statements May 28, Barth told jurors it was McDonough, not Mazzaglia, who killed Marriott that night, during violent sexual activity.
Two brief text messages also played a significant role in Tuesday’s testimony.
“Your claim to the grand jury is that Seth texting you ‘Are we painting tonight?’ is code, right?” defense attorney Joachim Barth asked McDonough.
Barth was referring to McDonough’s sworn statements to a grand jury in February 2013.
He asked whether the code referred to sexually assaulting Marriott.
“It was code to do something,” McDonough said, who has testified that Mazzaglia wanted to engage in sexual activities with Marriott that night. “(Sexual assault) could have been a possibility ... (it was) a code to get things moving in the direction we wanted them to move.”
McDonough’s response to the text — in an exchange that occurred between her and Mazzaglia while Marriott was in the room, unaware, apparently minutes before her death — was: “Your decision I guess. If you have a plan. Nervous.”
As Barth pressed for answers, McDonough broke down, as she did a week ago when prosecutors questioned her about the night of Marriott’s death.
“Other details of that night are hard for me to remember, because all I can remember are what it was like for him to strangle her right next to me,” she said, her voice trembling and rising in volume. “This is when it’s really being told. This is when everyone finds out — this is when her family is finding out.”
Barth was not moved by the apparent display of emotions.
“Do you cry without tears, Ms. McDonough?” he asked, before resuming his questioning.
Barth asked if McDonough didn’t mention the exchange to the grand jury because it was “inconsequential.”
“Isn’t the simple explanation about this text is that (Mazzaglia) was asking if you were painting tonight?” he asked. “You were, in fact, painting at (Mazzaglia’s) mother’s house. ... That’s why the tarp was out on the counter that night, correct?”
McDonough is serving a 1½- to three-year prison term after pleading guilty last July to charges including witness tampering and hindering the investigation. She has testified that she helped cover up the murder and rape of Marriott, whose body has never been found.
The trial resumes today at 9 a.m.