Commonwealth v. Read — Trial ArchiveYuri Bukhenik — Cross (Part 1)
870 linesCROSS-EXAMINATION BY MR. LALLY:
MR. JACKSON: Sergeant Bukhenik, I want to start with one of the latter things that you discussed with Mr. Lally and that's specific to the Ring video that y'all talked about this morning. Do you have that in mind?
MR. BUKHENIK: I do.
MR. JACKSON: The search warrant that produced -- and, just so we're clear, I'm talking about the specific Ring video or series of videos that were associated with One Meadows, John O'Keefe's house.
MR. BUKHENIK: Okay.
MR. JACKSON: You didn't write the search warrant for those Ring videos; did you?
MR. BUKHENIK: I did not.
MR. JACKSON: You were not the affiant for those search warrants?
MR. BUKHENIK: I was not.
MR. JACKSON: Who was the author of the search warrant and the affiant?
MR. BUKHENIK: It was Trooper Mike Proctor.
MR. JACKSON: Who received the actual Ring video or videos from the Ring corporation?
MR. BUKHENIK: It was Trooper Mike Proctor.
MR. JACKSON: And who ultimately either logged those into evidence or controlled those once they were received from the Ring corporation?
MR. BUKHENIK: I believe it was Trooper Mike Proctor.
MR. JACKSON: And, ultimately, Sergeant Bukhenik, you did note that in addition to just the physical videos themselves that log-in info and log-in keystrokes, et cetera, were requested from the Ring corporation, as well, correct?
MR. BUKHENIK: There was discussion with Ring, asking for those logs.
MR. JACKSON: Is it correct to say an activity log?
MR. BUKHENIK: That's what was requested, yes, activity log.
MR. JACKSON: So ultimately the activity log would show who logs in, who accesses the data, things of that nature, or at least that was the hope?
MR. BUKHENIK: That is what was requested.
MR. JACKSON: It would also show logging in and executing deletions, manipulating the log files and things of that nature, correct?
MR. BUKHENIK: That is what was requested, yes.
MR. JACKSON: When you reviewed those activity logs, there was no evidence revealed that my client ever logged into that account, correct?
MR. BUKHENIK: There was no activity logs provided by Ring.
MR. JACKSON: So you have zero -- hang on. Isn't it true that Ring contacted Trooper Proctor and indicated that they had created a DropBox folder that contained the evidence that had been sought in the search warrant?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Isn't it true that the search warrant return specified account investigation, video recordings and, number three, activity logs associated with the video recordings for all times displayed in UTC?
MR. BUKHENIK: I am not aware of that, no.
MR. JACKSON: Do you recall that activity logs were, in fact, provided from the Ring corporation?
MR. BUKHENIK: I do not recall that, no.
MR. JACKSON: May I approach briefly?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Take a look, Sergeant, at that paragraph which my finger's on. It's about the third paragraph down in the middle of the page. Review that to yourself and let me know when you're finished.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Have you had an opportunity to review that?
MR. BUKHENIK: Yes.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Does this refresh your recollection as to the items received from the Ring corporation?
MR. BUKHENIK: That is the first time I saw that document. So it does not refresh my recollection. I simply read it.
MR. JACKSON: So do you have a recollection as you sit here that, in fact, during the course of your investigation, the three items that you received from the Ring corporation were the account information, the video recordings and, quote, "activity logs associated with the video recordings at all times displayed in UTC"?
MR. BUKHENIK: To the extent of its availability, as it says in that document.
MR. JACKSON: Okay. The long and short of it is, during the entire course of your investigation, you never revealed any -- that investigation never revealed any evidence whatsoever that my client ever even accessed the account information for the Ring account associated with this search warrant, correct?
MR. BUKHENIK: Nothing provided by Ring proved or suggested or proved any evidence of that type of activity, no.
MR. JACKSON: Thank you. Trooper Proctor, you were notified --
MR. BUKHENIK: I'm not Trooper Proctor.
MR. JACKSON: I'm sorry. No, you're not. Sergeant Bukhenik --
MR. BUKHENIK: Sergeant Bukhenik.
MR. JACKSON: How do I say it?
MR. BUKHENIK: Bukhenik.
MR. JACKSON: I'll give that a shot. Bukhenik? Is that better?
MR. BUKHENIK: Yes. That's better. Thank you.
MR. JACKSON: If I screw it up again, please. On January 29th, you were notified about a Boston police officer found gravely injured outside the home of 34 Fairview at about 6:40 in the morning. Was that your testimony?
MR. BUKHENIK: That is not.
MR. JACKSON: What time were you notified?
MR. BUKHENIK: I was not notified it was a Boston police officer.
MR. JACKSON: So you didn't have that information upon the first notification?
MR. BUKHENIK: I did not.
MR. JACKSON: Okay. What information did you have?
MR. BUKHENIK: It was a male party in the snowbank possibly of a heart attack.
MR. JACKSON: At what point did you learn that the individual was, in fact, a sworn Boston police officer?
MR. BUKHENIK: I do not know exactly when I learned that he was a Boston police officer.
MR. JACKSON: Do you think it was during that day or the following day?
MR. BUKHENIK: It was most likely that day.
MR. JACKSON: Fair enough. Trooper Proctor was ultimately assigned as the -- what did you call him? Not lead investigator but case officer?
MR. BUKHENIK: That's correct.
MR. JACKSON: He was assigned on the 29th, correct?
MR. BUKHENIK: He was on call from 7:00 a.m. on January 28th until 7:00 a.m. on January 29th.
MR. JACKSON: So his assignment was -- he was assigned on the 29th because he was on call?
MR. BUKHENIK: He was on call. His assignment took effect when the schedule came out back in mid-December.
MR. JACKSON: Okay. Well, he wouldn't be assigned to this investigation until there was a need for the investigation, right? That's all I'm getting to. And, once the call came in, he was the assigned case agent?
MR. BUKHENIK: Once the calls come in, the person that's on call is automatically assigned that case.
MR. JACKSON: All right. Did you personally -- as his supervisor, did you personally respond to 34 Fairview at any point on January 29th?
MR. BUKHENIK: No, I did not.
MR. JACKSON: Did Trooper Proctor at your direction or on his own ever respond to 34 Fairview Road at any time on January 29th?
MR. BUKHENIK: No, he did not.
MR. JACKSON: Based on your initial investigation, and I'm talking about going way back, Sergeant, on your initial investigation, by 10:00 or 10:30 in the morning, 10:40 in the morning, it was your belief that Mr. O'Keefe had been struck in the face by a person. That was your initial understanding of the circumstances surrounding the investigation, correct?
MR. BUKHENIK: My initial understanding was that the defendant stated that she hit him. We did not know the --
MR. JACKSON: Sergeant, you hadn't even met my client at that point. You hadn't interviewed a single witness by 10:41 in the morning, correct, not one witness?
MR. BUKHENIK: That's not correct. We had already interviewed the first respondents.
MR. JACKSON: When I say "witness," I'm talking about civilian witnesses. So at 10:41, you hadn't interviewed a person at 34 Fairview or civilians associated with this incident, correct?
MR. BUKHENIK: At that point, no civilians had been interviewed, no.
MR. JACKSON: But, at 10:41, Sergeant, you contacted Good Samaritan Hospital to inform them that, quote, "Mr. O'Keefe was struck in the face with a cocktail glass," end quote, correct?
MR. BUKHENIK: I do not recall contacting Good Samaritan Hospital.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: I'd like you to take a look at this document and, if you wouldn't mind, pay special attention to the second page, the bottom paragraph, where it's tabbed in pink.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Thank you, sir. Having reviewed this, does this refresh your recollection that you contacted Good Samaritan Hospital and gave them an assessment, at least based on your investigation, at that time?
MR. BUKHENIK: That is not true.
MR. JACKSON: Okay. What did you say to Good Samaritan Hospital?
MR. BUKHENIK: I never spoke to Good Samaritan Hospital. That document is for the medical examiner's office.
MR. JACKSON: I am not asking you where the document is from. I'm asking you if the document says Trooper Yuriy Bukhenik called back at 10:41, stating the case is now being treated as a suspicious --
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained.
BY MR. JACKSON:
MR. JACKSON: Did you say, did you call back to Good Samaritan Hospital and say that the investigation was being treated as a suspicious due to domestic -- sorry -- due to a domestic situation? Did you say that?
MR. BUKHENIK: I never spoke to Good Samaritan Hospital.
MR. JACKSON: Did you say that there's a possibility that V was struck in the face with a cocktail glass?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you ever contact anybody at any medical facility and indicate that the investigation was being treated as a "suspicious," in quotation marks because the victim appeared to have been struck in the face by a cocktail glass?
MR. BUKHENIK: Yes.
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that. Did you ever say that?
MR. BUKHENIK: Yes, Your Honor. Yes. I did say that to the --
BY MR. JACKSON:
MR. JACKSON: To whom?
MR. BUKHENIK: To the medical examiners operations desk.
MR. JACKSON: Okay. So when I was asking you for your -- you said, no, that's not true, that's never happened at Good Sam, you were correcting me on the fact that it happened at the medical examiner's office, not at Good Sam?
MR. BUKHENIK: I responded and answered your question honestly, yes.
MR. JACKSON: Okay. So honestly, you did, in fact, at 10:41 a.m. indicate to another professional involved in the investigation that the circumstance was being treated as a physical assault at that point, correct?
MR. BUKHENIK: I communicated our suspicions to the medical examiner's office.
MR. JACKSON: And that was at 10:41 or thereabouts in the morning, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: Your initial investigation during those obviously critical hours, the beginning hours, led you to believe that there was at least a good possibility -- you indicated that you made a phone call -- that it was a physical altercation that led to John O'Keefe's death, correct?
MR. BUKHENIK: That's correct, yes.
MR. JACKSON: What steps did you take, sir, to, in those moments, to determine whether someone in the house at 34 Fairview may have been involved in that physical altercation that you suspected at the time?
MR. BUKHENIK: As investigations develop, we followed the evidence and statements made. The steps I took was Trooper Proctor and I proceeded to an eyewitness who was also present at the scene when the victim was discovered and interviewed Ms. McCabe.
MR. JACKSON: And, prior to that, prior to interviewing Ms. McCabe -- by the way, that was at Ms. McCabe's home, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: Even though you believed that there may have been a physical altercation, you didn't ask anybody to come down to the station, is that right, any of the witnesses?
MR. BUKHENIK: That's correct.
MR. JACKSON: And you did not seek to actually go to the physical location of 34 Fairview in those next few hours?
MR. BUKHENIK: That's correct.
MR. JACKSON: Or the next few days, correct?
MR. BUKHENIK: Not myself, no.
MR. JACKSON: Okay. As a matter of fact, Trooper Proctor did not either, did he?
MR. BUKHENIK: No, he did not.
MR. JACKSON: You didn't secure the interior of the house as a potential crime scene? You certainly know how to do that, right?
MR. BUKHENIK: That is a compound question. Do you want me to answer whether I did it or whether I know how to do it?
MR. JACKSON: Well, I'll ask the question. If you can answer it, please answer it.
MR. BUKHENIK: Okay.
MR. JACKSON: Can you answer that question?
MR. BUKHENIK: I can answer that question.
MR. JACKSON: Why don't you answer both of them, then.
MR. BUKHENIK: The first portion is we did not secure the home as a crime scene. And the second portion, yes, I do know how to do that.
MR. JACKSON: And you didn't, as a Massachusetts State Police official, you didn't secure the outside as a crime scene, either, did you?
MR. BUKHENIK: I did not, no.
MR. JACKSON: To your knowledge, nobody else from Massachusetts State Police ever did, either, did they?
MR. BUKHENIK: Yes, they did.
MR. JACKSON: How was that done and when?
MR. BUKHENIK: When members of our office and the SERT team responded to that location and secured the front yard grass area and processed them.
MR. JACKSON: That was at 5:45, 6:00 o'clock that night on the 29th?
MR. BUKHENIK: I believe it was earlier, but I was not present. So I can't testify to the time.
MR. JACKSON: So you don't know personally what they did to, quote, unquote, "secure" or not secure the crime scene? You know they searched it. But, in terms of securing it as a crime scene, you don't have personal knowledge to that?
MR. BUKHENIK: I was not present.
MR. JACKSON: You never took any photos of the interior of the house, correct?
MR. BUKHENIK: I did not, no.
MR. JACKSON: You never caused CSSS to go inside the house and process that house as a potential crime scene, correct?
MR. BUKHENIK: I did not, no.
MR. JACKSON: No forensic criminalist at your direction ever went into 34 Fairview?
MR. BUKHENIK: No, they did not.
MR. JACKSON: And the people that you interviewed on January 29th, you already mentioned Ms. McCabe, the other people were her husband, Matt McCabe, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And her brother-in-law, Brian Albert; is that right?
MR. BUKHENIK: That is correct.
MR. JACKSON: And all three of them were interviewed where?
MR. BUKHENIK: They were interviewed at the McCabe residence.
MR. JACKSON: Now, yesterday when you testified, did you indicate that Brian Albert was not present in the home when you interviewed Matt McCabe and Jennifer McCabe?
MR. BUKHENIK: He was not present in the dining room when we were interviewing each individual separately.
MR. JACKSON: So if all three of them testified that he arrived before you arrived, they would all be wrong?
MR. BUKHENIK: I did not see him in the home when we arrived, no.
MR. JACKSON: I want to switch gears real quick to a couple of the physical items that you testified about yesterday, specifically, the gray shirt or the gray hoodie and the orange shirt. You and Trooper Proctor collected both of those items, you indicated, from the floor of the hospital at Good Samaritan, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: You testified that you and Trooper Proctor immediately bagged both of those items. They were sort of sopping wet, I think you said?
MR. BUKHENIK: That's correct.
MR. JACKSON: You indicated that the bags were so wet that you had to take the items back out of the bags and then lay them out on, I think you said, butcher paper; is that right?
MR. BUKHENIK: The items were soaked and wet. They were bagged, double bagged, to prevent leakage of physiological fluids and the moisture coming off of it. And then once they were transported to the office, they were laid out on butcher paper in order to dry naturally.
MR. JACKSON: So you went from Good Samaritan directly to Dighton, correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: And then you went from Dighton directly to the Canton Police Department after which you had seized the vehicle, correct, and the phone?
MR. BUKHENIK: We seized the phone and the vehicle in Dighton and followed the tow truck straight to the Canton Police Department.
MR. JACKSON: So at some point, if you had received or gathered the wet clothing at Good Sam, went from Good Sam to Dighton and from Dighton to Canton P.D., at what point that evening did you finally get those items of clothing out and laid out to dry?
MR. BUKHENIK: It was late that night around 10:00 or so.
MR. JACKSON: So where were the items in the meantime?
MR. BUKHENIK: They were stored in the back passenger compartment of my pickup truck.
MR. JACKSON: In those double bags?
MR. BUKHENIK: Correct.
MR. JACKSON: Who took control of the items to then lay them out like that night at the office?
MR. BUKHENIK: I do not recall.
MR. JACKSON: Was that you or Trooper Proctor?
MR. BUKHENIK: I don't recall. I don't remember.
MR. JACKSON: At some point, obviously, it was getting late. You'd been on duty for a long time that day. You went home at some point; is that correct?
MR. BUKHENIK: At some point, yes.
MR. JACKSON: Did you wait for those clothes to dry before you went home or did you leave that in Trooper Proctor's hands?
MR. BUKHENIK: No. Once they were laid out in the processing area in the office, we went home.
MR. JACKSON: Okay. Who would have controlled those items of evidence when you left?
MR. BUKHENIK: They are under lock and key within the secure area of the district attorney's office. So they are secured. Nobody is in physical control, watching guard over it.
MR. JACKSON: Who had access to that area?
MR. BUKHENIK: Troopers in our office.
MR. JACKSON: Meaning you, obviously?
MR. BUKHENIK: Yes.
MR. JACKSON: As supervisor. Trooper Proctor, as well, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: Ultimately, given the fact that he was the case officer sort of in charge, the lead, he would have bagged those items up and been responsible for taking those items, tagging them, getting them stored wherever they needed to be stored and processed, correct?
MR. BUKHENIK: As a case officer, he could direct other people to perform those tasks for him. But the evidence officers in the office logged in the evidence. And, once it was dry, it was sealed up, bagged and put into storage. As far as who actually performed those tasks, I do not know.
MR. JACKSON: Well, yesterday --
MR. JACKSON: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: It's not a vision contest. I'll bring these up to you in just a second. But just for familiarity's sake, do you recognize these two bags as bags that you brought to court with you yesterday?
MR. BUKHENIK: They look familiar, yes.
MR. JACKSON: Okay. This one has a "437" on it. The one on my left has a "438" on it.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: I'm not going to ask you to look at those. Don't worry about gloving-up at this point. The bag on your left, which one is that, 437 or 438?
MR. BUKHENIK: The bag on my left is 437.
MR. JACKSON: Four thirty-seven. Okay. And you indicated that those items were bagged after the clothing was dried and then ultimately processed in, logged in, correct?
MR. BUKHENIK: Once the item's dried, they were bagged and logged in, waiting for processing. Yes.
MR. JACKSON: But you didn't personally do that?
MR. BUKHENIK: No, I did not.
MR. JACKSON: As a matter of fact, looking at the bag on your right, what's been marked as Exhibit 43 -- help me.
MR. BUKHENIK: Eight.
MR. JACKSON: Four thirty-eight. Thank you. That one has some writing on it, correct?
MR. BUKHENIK: Yes. It has a lot of handwriting on it. Yes.
MR. JACKSON: And that -- whose handwriting is that?
MR. BUKHENIK: I don't know.
MR. JACKSON: You've seen Trooper Proctor's handwriting a thousand times, I guess, correct?
MR. BUKHENIK: Not a thousand times but --
MR. JACKSON: Does it look like his writing?
MR. BUKHENIK: It says "Trooper Proctor" on it. But, other than that, I do not know what Trooper Proctor's handwriting looks like.
MR. JACKSON: All right. It indicates that Trooper Proctor is the one that bagged that up, that item or those items, up, correct?
MR. BUKHENIK: Yes. This bag indicates the item was collected by Trooper Proctor on 1/29.
MR. JACKSON: Right. And it says "Brockton," correct?
MR. BUKHENIK: Good Samaritan Hospital in Brockton, yes.
MR. JACKSON: You just took the question out of my mouth. That's where Good Samaritan Hospital is, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And there is a tag or a printed label, it looks like a label maker of some sort, that is on that physical bag, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: Before we get to that, what is the description of that bag in handwriting?
MR. BUKHENIK: I'm sorry. Can you be specific as to description of what or --
MR. JACKSON: Where it says, description of items.
MR. BUKHENIK: Description of the clothes evidence?
MR. JACKSON: Correct.
MR. BUKHENIK: It says, one orange tee shirt, one gray long- sleeve shirt.
MR. JACKSON: Okay.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Before I do that just so I close this loop, what's the description on the bag to your left, the one that looks like it's less wrinkled?
MR. BUKHENIK: No. 437?
MR. JACKSON: Yes. If you could read the same clothing description?
MR. BUKHENIK: The description of the clothes evidence states, sweatshirt with recovered inside contained.
MR. JACKSON: Thank you.
MR. JACKSON: May I approach now?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Yesterday when you opened -- I'll keep my voice up. Yesterday when you opened these two bags, this one, 437, has the gray sweatshirt in it. Four thirty- eight has the orange tee shirt in it now, correct?
MR. BUKHENIK: That's where it was in the bag. Yes.
MR. JACKSON: All right. However, the bag indicates at one point this bag, 438, the physical bag I'm holding in my left hand, had both the sweatshirt and the tee shirt together, correct?
MR. BUKHENIK: That's what the description is. I do not know if that was the case or, in fact, the case.
MR. JACKSON: The reason you don't know is because you're not the one who bagged them. Trooper Proctor did, correct?
MR. BUKHENIK: The reason I don't know is I wasn't present during the separation of those items, and I did not observe it taking place, nor was I made aware of how the items were separated or when.
MR. JACKSON: You are aware, however, that that tag, the label-maker looking tag, the white tag that's on that bag, indicates that it was -- indicates a date of February 4th, correct?
MR. BUKHENIK: You have to bring that back up. I didn't --
MR. JACKSON: I'm sorry.
MR. BUKHENIK: -- take note of that.
MR. JACKSON: My fault.
MR. JACKSON: May I, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: I direct your attention to the tag and the date associated with that tag.
MR. BUKHENIK: The label maker tag does have the date February 4th, 2022 on bag number Exhibit 438.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Thank you, sir. That's obviously six days after the item was actually recovered on the 29th, correct?
MR. BUKHENIK: Yes, it is.
MR. JACKSON: So that indicates, at least based on that tag, that that item was not booked into evidence and processed until six days after it was actually recovered on the floor at Good Samaritan Hospital; is that right?
MR. BUKHENIK: The date indicates February 4th, 2022.
MR. JACKSON: Right. And that date would be indicative in your experience of the date that it's moved into processing by some other folks, the evidence sergeants or whomever or the evidence officers, rather, or whomever, correct?
MR. BUKHENIK: I can't speak to their procedure as far as when they print that date. That date could be when they printed the label, but the bag might have been tagged otherwise. I do not know that.
MR. JACKSON: But there is no other tag on that bag that suggests an earlier date, correct?
MR. BUKHENIK: There is just that one tag from the label maker.
MR. JACKSON: My question to you, if you know, sir, and you may not know, is what was happening to these items between January 29th after you lost sight of them that night on the butcher paper and February 4th, when that tag indicates that they were first processed?
MR. BUKHENIK: To the best of my knowledge, those items were drying on the butcher paper.
MR. JACKSON: For six days?
MR. BUKHENIK: If that's what the label maker says, yes, six days. They were soaking wet.
MR. JACKSON: And those would have been certainly accessible to and in the possession of the lead case officer in the case, Trooper Proctor, right?
MR. BUKHENIK: Yes. If Trooper Proctor needed to review those items, he would have access to those items. Absolutely.
MR. JACKSON: And you're also aware that the first actual log of any chain of custody for those items is March 14th when they were finally submitted six weeks later to the crime lab?
MR. BUKHENIK: That is not true. The first actual log of those items is when we collected them from the hospital.
MR. JACKSON: Where is the log? I'm talking about the physical log, like a sign-in/sign-out log. Where is the log?
MR. BUKHENIK: It's documented in the reports, saying that we collected it.
MR. JACKSON: I know that there is a report. Anybody can write a report, right? I can write a report. It doesn't mean anything. I'm asking for a log.
MR. LALLY: Objection.
JUDGE CANNONE: So the objection is sustained.
BY MR. JACKSON:
MR. JACKSON: Obviously, when items move in and out of people's custody in an official capacity for the Massachusetts State Police, there is a log of that, correct?
MR. BUKHENIK: It's documented, yes.
MR. JACKSON: Or at least it should be, correct?
MR. BUKHENIK: It's documented.
MR. JACKSON: Where is the log of these items before March 14th?
MR. BUKHENIK: It's documented in the report.
MR. JACKSON: There is no log, is there, Sergeant?
MR. BUKHENIK: I do not know.
MR. JACKSON: Okay. I want to talk a little bit about some searches that Mr. Lally asked you about, February 4th and February 10th, very specifically. Both of those searches you were involved with out at 34 Fairview, correct?
MR. BUKHENIK: Correct.
MR. JACKSON: But, Sergeant, you didn't personally write a report about your conduct at 34 Fairview on either of those two dates? In other words, you didn't go back to the station and generate a report, yourself?
MR. BUKHENIK: I don't recall doing that, no.
MR. JACKSON: There were no photos that you took of the items at the location? Somebody else took photos, correct?
MR. BUKHENIK: I did not take photos.
MR. JACKSON: Okay. And the first report that indicates anything that happened or was recovered at the location on either February 4th or February 10th, that was first notated in a report dated November 4th, 2023, a year and a half, a year and several months, later, correct?
MR. BUKHENIK: If you say so. I do not know the exact date. That report would have to be presented to me.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: You don't have to read the whole thing but if you can skip to the part that talks about the February 4th and February 10th searches. I'm sorry. I didn't realize you were finished already. What's the date of that -- well, let me ask a foundational question. Does that refresh your recollection as to the date of the report that actually talks about the February 4th and February 10th searches?
MR. BUKHENIK: It does.
MR. JACKSON: And what is the date of that report, sir?
MR. BUKHENIK: This report is dated November 4th, 2023.
MR. JACKSON: Thank you.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: Now, as it relates to those two searches, I'd like to ask you a little bit about the February 4th search first. You indicated that you actually responded to 34 Fairview personally, correct?
MR. BUKHENIK: I was responding to that location on my own. I personally responded. Yes.
MR. JACKSON: Okay. That was because you had received information that Chief Berkowitz had seen something or found something; is that right? Chief Berkowitz from Canton P.D.?
MR. BUKHENIK: That is not correct. No.
MR. JACKSON: Okay. So when you got there, was Chief Berkowitz there?
MR. BUKHENIK: Yes, he was.
MR. JACKSON: You just happened to go by 34 Fairview at the exact same time on the exact same date as Chief Berkowitz, or was that coordinated in some way?
MR. BUKHENIK: There was no coordination between me and Chief Berkowitz. As I testified, I had directed the troopers to go by the location. I planned to go by the location in the morning on the way to the office and in the afternoon on the way home just to see if any more items would reveal themselves. So that morning I was actually traveling to that location in order to conduct a view of the area to see if any more evidence had been revealed. Prior to my arrival, approximately while I was on Chapman Street, I received a call indicating that Chief Berkowitz was at that location.
MR. JACKSON: Okay. And was there also an Officer Lank, Sergeant Lank?
MR. BUKHENIK: I do not know if Sergeant Lank was there, no.
MR. JACKSON: Okay. Chief Berkowitz certainly was there?
MR. BUKHENIK: Yes.
MR. JACKSON: And Chief Berkowitz indicated that as he was driving by, he saw a piece of plastic?
MR. BUKHENIK: Yes.
MR. JACKSON: And stopped his car and then started making phone calls?
MR. BUKHENIK: I believe that's what he indicated for the call, yes.
MR. JACKSON: Did you question Chief Berkowitz about why he was driving by the location in the first place?
MR. BUKHENIK: Absolutely not.
MR. JACKSON: You knew at that point that the Canton Police Department had been recused because of at least an appearance or a potential for a conflict of interest, correct?
MR. BUKHENIK: I knew they recused themselves due to -- only in respect to interviews. They didn't want to perform or conduct interviews with us.
MR. JACKSON: Well, if there is a conflict of interest, Sergeant, for a department, conducting the interviews is just one aspect of an investigation, correct?
MR. BUKHENIK: I'm not going to speak of conflict of interest. But, yes, conducting an interview is just one aspect of an investigation.
MR. JACKSON: So is it your testimony that your understanding was they couldn't conduct interviews but they could collect evidence, store evidence, write search warrants, get returns on search warrants, execute search warrants, conduct searches? They could do all that but not conduct interviews?
MR. BUKHENIK: My understanding was they were recusing themselves from conducting interviews. They still allowed us to use their facilities. We utilized their conference room to conduct interviews. There was evidence being stored at their sally port, being the vehicle. So that was my understanding.
MR. JACKSON: Isn't it true that you knew that the entirety of the Canton Police Department had recused itself because of a familiarity between one of their members, Kevin Albert, and the Albert family on whose lawn John O'Keefe was found? That was the conflict, correct?
MR. BUKHENIK: I knew that that was the connection between them, yes.
MR. JACKSON: And you understood, sir, that that agency was to have nothing from an investigative standpoint, nothing to do with this investigation, correct?
MR. BUKHENIK: They were not conducting the investigation, no.
MR. JACKSON: As a matter of fact, Trooper Proctor, and you supervising him, y'all were conducting the investigation, right?
MR. BUKHENIK: Our office was conducting the investigation.
MR. JACKSON: So did you find it unusual or suspicious in any way that the chief of police for the conflicted Canton P.D. was the person driving by 34 Fairview, looking for evidence?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that question, Sergeant?
MR. BUKHENIK: He would have to repeat it. There's just so much, I can't --
BY MR. JACKSON:
MR. JACKSON: It was a little wordy. I'll try it again. Did you find that suspicious?
MR. BUKHENIK: Which part? You have to repeat the whole thing.
MR. JACKSON: That Chief Berkowitz from the conflicted Canton P.D. was at 34 Fairview looking for evidence?
MR. BUKHENIK: The way you pose the question, I did not find it suspicious at all. He's the chief of police in the town where he works, and he's driving down the street. I mean, that's not suspicious.
MR. JACKSON: With a conflict of interest on the very case that he's driving by?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You certainly knew as a supervisor over the case officer that any involvement by Canton Police Department, given the fact that there is a potential conflict, any involvement by them could compromise your otherwise clean investigation? You knew that, right?
MR. BUKHENIK: Not necessarily, no.
MR. JACKSON: Did Chief Berkowitz disclose to you that morning on February 4th that he had been communicating with Brian Higgins and Brian Albert, two witnesses on your case, that morning?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: If you knew information about communication between and among Canton P.D. and your witnesses, you would find that inappropriate, would you not?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You returned to the scene on February 10th, is that right, to conduct another search, you said?
MR. BUKHENIK: I was present on the 10th. Yes.
MR. JACKSON: Who dispatched you back or did anybody dispatch you back to that location on February 10th? How did you end up there is a better way to ask it.
MR. BUKHENIK: February 10th, just like previous days, we made plans to go to the location in the morning and the afternoon, drive by. It was on my way to work and to home. So I traveled that route on purpose. And, as evidence revealed itself, due to the natural melting of the snow, we would stop and collect the visible evidence.
MR. JACKSON: You believed at this point, sir, that whatever you might collect at the scene would obviously be important, correct?
MR. BUKHENIK: Anything we collected that had evidentiary value or presented itself as somehow related to the crime or the incident would be collected.
MR. JACKSON: And it would be important to the investigation, right? You'd treat it as important?
MR. BUKHENIK: We'd treat it as important, yes.
MR. JACKSON: So my question is, was -- especially as it relates to the February 10th search where there were multiple items found, did you seek to have CSSS come out and actually mark with GPS coordinates or measure with cross-coordinates exactly where each item of evidence was found?
MR. BUKHENIK: We did not do that. We had collected so much evidence already and so much has been documented at that point that we did not contact crime scene services to come back out and photograph more shards of glass and plastic. We simply collected it for processing.
MR. JACKSON: So the location of each one of those items was not of that great importance to you at least at that time?
MR. BUKHENIK: It was of great importance as to the fact that it was located in the vicinity where the victim was found and in the vicinity of other items located of the same characteristic, shape, size and color.
MR. JACKSON: So that's my question, Sergeant. What does vicinity mean?
MR. BUKHENIK: In the area.
MR. JACKSON: Okay. What does area mean?
MR. BUKHENIK: It's a location, specific location.
MR. JACKSON: Okay. Are we talking about -- because we can do this all day, I guess. Are we talking about an area of five feet or an area of 50 feet?
MR. BUKHENIK: Based on where the items were recovered, we are talking about an area approximately of 30 square feet between the roadway, into the grass.
MR. JACKSON: We saw photographs, Sergeant, of items that were butted up against a fire hydrant in one instance, correct? Is that "yes"?
MR. BUKHENIK: That's correct. Yes.
MR. JACKSON: A drinking straw that's out in the road, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: Another shard of glass that's in the grass, closer to the flagpole, correct?
MR. BUKHENIK: Correct.
MR. JACKSON: A hat that's under the snow adjacent to the left side of the flagpole, correct? I'm sorry. It wasn't. It was closer to the electrical box, wasn't it?
MR. BUKHENIK: No. The pictures documented where the hat was. It was to the right of the flagpole.
MR. JACKSON: So these shards of glass, the point I'm asking is, did you seek to use basic cross-coordinates, measurements, from something that you know is a known object like, for instance, I don't know, a flagpole or a fire hydrant, 27 inches to the north and a foot and a half to the south of those two known points? That would give you a cross-coordinate, correct?
MR. BUKHENIK: It would document the exact location. Correct.
MR. JACKSON: And you did not do that with any of these items, correct?
MR. BUKHENIK: The items that were not photographed were not also GPS located. But were within the same vicinity of where the other items were collected.
MR. JACKSON: But, again, now we are back to the same question. Your word for vicinity might be different than my word for vicinity, right?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: When you recover these items or any other items, it's obviously important to memorialize on the evidence bag or in some other way exactly where they are found, who found them, the date and time, et cetera, correct?
MR. BUKHENIK: We do the best we can to document all known information on each evidence item bag at the time.
MR. JACKSON: In terms of the February 10th search, I want to just ask you a couple of quick questions about that evidence bag. Did you bag the items into a single evidence bag that you found that day or do you recall?
MR. BUKHENIK: I would have to see the bag. If you have those available, I'll take a look.
MR. JACKSON: Your Honor, with the Court's permission, I think it's Exhibit 310 that was entered into evidence yesterday. I'd like to display that.
BY MR. JACKSON:
MR. JACKSON: You're looking at a photograph of what was previously entered into evidence as 310. Can you see that from where you are at? I don't have the evidence bag with me. So if you don't, I can certainly ask Mr. Bates to enlarge it.
MR. BUKHENIK: If you can enlarge it, please?
MR. JACKSON: Just the portion of the writing. Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I didn't realize I have a photograph of it.
JUDGE CANNONE: Do you need the lights on, Sergeant?
MR. BUKHENIK: Please.
BY MR. JACKSON:
MR. JACKSON: There you go.
MR. BUKHENIK: Thank you.
MR. JACKSON: That should be easier. Sir, have you been able to familiarize yourself with that evidence bag?
MR. BUKHENIK: With the photograph, yes.
MR. JACKSON: Okay. Thank you. Take a look at that evidence bag. It has the information on it. It has your name as collected by, correct?
MR. BUKHENIK: Correct.
MR. JACKSON: The date of collection is February 10th; is that right?
MR. BUKHENIK: That's what it says, yes.
MR. JACKSON: Okay. And it indicates multiple pieces of red, black and clear plastic, correct? It actually says six pieces of red, black and clear plastic, correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: But that is not an evidence bag that was filled out by you, is it?
MR. BUKHENIK: I did not fill that bag out.
MR. JACKSON: As a matter of fact, that's Trooper Proctor's handwriting?
MR. BUKHENIK: I do not know what Trooper Proctor's handwriting is. I cannot confirm that that's his handwriting.
MR. JACKSON: But it's not your handwriting?
MR. BUKHENIK: It is not my handwriting, no.
MR. JACKSON: So are you aware that this particular bag, that bag that contained those six items of plastic material that you already deemed was incredibly important to the investigation, was never booked into any evidence until March 14th, the date that it was submitted to the crime lab?
MR. BUKHENIK: I was not aware of that, no.
MR. JACKSON: We can take that down, Mr. Bates. If I may approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Did you ever draft or report yourself documenting the recovery of those six items and the other 14 items that you said that you found on the same date, February 10th?
MR. BUKHENIK: I did not, no.
MR. JACKSON: Did you leave that, assuming that Trooper Proctor would document that?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: I'll ask it another way if I can.
BY MR. JACKSON:
MR. JACKSON: Did you believe that you didn't need to write a report, Sergeant, because Trooper Proctor would take care of that?
MR. BUKHENIK: I knew that it would be documented. It was already documented on the actual bag as far as who collected it, when, where and what it was. And a report would eventually be authored on it.
MR. JACKSON: But the where for all of these very intricate of pieces, the where is left to 34 Fairview on the bag, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
BY MR. JACKSON:
MR. JACKSON: Is that right?
MR. BUKHENIK: The general vicinity location of the other items collected and documented with photographs was consistent with the same locations this was collected.
MR. JACKSON: I want to shift gears for just a second. Well, actually, I want to ask one final question about that item. Based on the documentation that you just mentioned that is documented on the bag and if the bag is presented to the crime lab on March 14th, some five weeks later, those items were completely unaccounted for from a log standpoint for the entire time from when they were collected until they were booked at the crime lab, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you keep possession of those items for those four, five or six weeks?
MR. BUKHENIK: Are you talking about the items that were just displayed on the screen?
MR. JACKSON: I am, sir.
MR. BUKHENIK: I did not.
MR. JACKSON: Now I'd like to shift gears to a Ring video that you saw yesterday. It's in Exhibit 6, Video No. 153. That may mean nothing to you. It is the 5:07 a.m. video of Ms. Read's car pulling out of the One Meadows garage. Do you remember that video?
MR. BUKHENIK: I do.
MR. JACKSON: Okay. You indicated yesterday under questioning by Mr. Lally that Ms. Read's car came close to, came in contact with or close to coming in contact with the other vehicle, the Traverse, in the video; is that right?
MR. BUKHENIK: As I watched the video, I observed the vehicle come near Mr. O'Keefe's car.
MR. JACKSON: Okay. That's what I want to talk about.
MR. JACKSON: With the Court's permission, may we play that video one more time?
JUDGE CANNONE: Okay.
MR. JACKSON: Mr. Bates, if you could pull that up and then I'd ask you to pause it. Let me get out of the way. Okay. If you could play that for a quick second and then I'll ask you to pause it.
(Whereupon, the video is played.)
MR. JACKSON: Pause.
(Whereupon, the video is paused.)
BY MR. JACKSON:
MR. JACKSON: I'm just pausing it in the first two or three seconds. Does that appear to be the video that you saw yesterday?
MR. BUKHENIK: It appears that way, yes.
MR. JACKSON: Mr. Bates, if you could enlarge the area around the left rear tire of the Traverse?
MR. JACKSON: I'm going to ask you, sir, if you'll pay close attention to what's been zoomed and, when the SUV gets close to it, I'm going to pause it and ask you another question.
MR. JACKSON: If we could go ahead and play this.
(Whereupon, the video is played.)
MR. LALLY: Your Honor, I'm going to object to this.
JUDGE CANNONE: So why don't we pause the screen. Take it down, and I'll see you at sidebar.
(Whereupon, the video is paused.)
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: What is the objection?
MR. LALLY: As far as the enlargement and blowing it up on the screen, he can ask the witness to pay attention to observe the area of the screen, ask if he sees something. But, as far as manipulating the video in this way, I don't think it's appropriate.
MR. JACKSON: Your Honor, how many times has the Commonwealth asked Ms. Gilman to enlarge or zoom in on a photo or a video? They do it every --
JUDGE CANNONE: I am going to let him do it. It's unfortunate that the D.A.'s office didn't get better equipment for this, right? I mean, your equipment that Ms. Gilman has does not amplify the way this does. Is there any suggestion that this is modified in any way, Mr. Lally?
MR. LALLY: Not that I know of, no.
JUDGE CANNONE: Have you seen this in this form?
MR. LALLY: No.
JUDGE CANNONE: Do you want to take a five-minute break and see it?
MR. LALLY: No.
MR. JACKSON: It is just an enlargement of the exhibits. It's just a zoom.
JUDGE CANNONE: What are you going to do with it?
MR. JACKSON: I'm going to play it until the SUV comes in contact with the troopers. It's very obvious when you zoom it and you look at the rear tire.
JUDGE CANNONE: Okay. So you say it fits the Traverse. And then what are you going to do with it?
MR. JACKSON: That's it, just ask him if that changes his opinion that it came in contact with or was close to the Traverse.
JUDGE CANNONE: Okay. And you're objecting to that, Mr. Lally?
MR. LALLY: I think the video speaks for itself. I don't see why you have to --
MR. JACKSON: Mr. Lally shouldn't have asked him the question yesterday. He brought it up.
JUDGE CANNONE: So I'll let you do it one time.
MR. JACKSON: Okay.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: I'm going to try to situate myself so I'm out of the way. If we could have the lights dimmed, Your Honor?
JUDGE CANNONE: Sure.
MR. JACKSON: Thank you. Go ahead and enlarge that rear area of the Traverse.
BY MR. JACKSON:
MR. JACKSON: I am going to ask you to pay special attention to that wheel and any movement that you may or may not see.
(Whereupon, the video is played.)
MR. JACKSON: Okay. Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: In about the next three seconds, Sergeant, I'm going to ask you to pay special attention to it.
(Whereupon, the video is played.)
MR. JACKSON: If we could have the lights on. And you can take that down.
BY MR. JACKSON:
MR. JACKSON: Sergeant, were you able to see that video? I know it's not the clearest thing in the world, but were you able to see that video okay?
MR. BUKHENIK: Yes.
MR. JACKSON: What did you notice about the rear wheel of the Traverse?
MR. BUKHENIK: Based on the motion in the shot with the snow falling, it appears that there is movement, but the video speaks for itself.
MR. JACKSON: What would you assess, based on the movement of the rear wheel of the Traverse about whether or not the two vehicles came in contact with one another?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. I'm trying to use my time wisely, Your Honor.
BY MR. JACKSON:
MR. JACKSON: Yesterday, Sergeant, you were asked about a couple of videos related to the sally port garage. Do you have that in mind?
MR. BUKHENIK: Yes.
MR. JACKSON: As a matter of fact, we watched one of them pretty specifically toward the end of the day yesterday. Did you actually -- I want to talk about the one that is the clearer of the two where you slip. Do you remember that one?
MR. BUKHENIK: If you pull it up, I can --
MR. JACKSON: I will in just a second.
MR. BUKHENIK: Okay.
MR. JACKSON: There was one where Mr. Lally paused it and you were slipping in front of the vehicle?
MR. BUKHENIK: I don't recall myself slipping, no.
MR. JACKSON: Okay. Fair enough.
MR. BUKHENIK: It was icy that day. So if there is documentation of me slipping --
MR. JACKSON: Fair enough. I didn't mean anything by that other than that was a moment that I thought you might recall to differentiate the videos. It is Exhibit 446, but I don't think that's going to help you. Let's see if I can do this another way. Did you actually personally go to Canton P.D. to retrieve any or all of the videos of the sally port, you, yourself?
MR. BUKHENIK: I did go to Canton and collect already extracted video.
MR. JACKSON: Okay.
MR. BUKHENIK: But it was a portion of video surveillance. I didn't collected all of the video.
MR. JACKSON: When was the most recent time that you went to Canton to collect a portion of a video?
MR. BUKHENIK: I don't remember.
MR. JACKSON: Okay.
MR. BUKHENIK: I'm sorry.
MR. JACKSON: Did you review the -- well, let me ask it this way: Did you collect a video that was sought on or about April 23rd, April 24th of this year, meaning just a few weeks ago?
MR. BUKHENIK: Did I collect it?
MR. JACKSON: Correct.
MR. BUKHENIK: I did not collect that video.
MR. JACKSON: Okay. You're aware that the video that you saw yesterday was, in fact, collected after the trial started in April of 2024?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Are you aware of when that video that we saw yesterday was collected?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. BUKHENIK: I am not aware.
BY MR. JACKSON:
MR. JACKSON: Okay. Was yesterday the first time you had seen that video?
MR. BUKHENIK: No.
MR. JACKSON: When had you seen that video previously?
MR. BUKHENIK: A couple of weeks ago.
MR. JACKSON: Okay. What were the circumstances in which you saw that video?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you have a meeting with the D.A.?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Did you ever have any kind of communication with Mr. Lally about your testimony?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: May we approach?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So why don't you put your objection on the record. What are you objecting to?
MR. LALLY: Relevancy.
JUDGE CANNONE: Go ahead, Mr. Jackson.
MR. JACKSON: I want to find -- I think it's highly relevant when he's seen this, if he's prepped for his testimony, how many conversations he's had with the D.A., what was the subject of the conversation. That's a standard question we've asked many of the witnesses. It's highly relevant to determine whether or not he had been given any guidance about how he should testify or what he is going to be saying. It goes to basic bias in his preparation.
JUDGE CANNONE: You're objecting as to whether he be questioned regarding any bias in his preparation?
MR. LALLY: I mean, I never provided any witness with any guidance as far as how to testify.
JUDGE CANNONE: I expect that's what he'd say. Are you objecting to it?
MR. LALLY: Again, I just don't see how any of this is relevant.
JUDGE CANNONE: You say it goes to bias?
MR. JACKSON: It goes to bias but it also goes to prior statements of witnesses. If he met with Mr. Lally and they discussed his testimony, I'm entitled to that. I should have gotten a report about it, quite frankly. But, short of that --
JUDGE CANNONE: I will give you a little bit of leeway. Don't forget we are leaving at noon today.
MR. JACKSON: I've skipped over about two- thirds of my --
JUDGE CANNONE: I am not asking you to cut your cross-examination short.
MR. JACKSON: It's on me. It's on me. Thank you.
(Whereupon, the sidebar conference concluded.)
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Sergeant, did you have any meetings or communications with Mr. Lally in anticipation of your testimony?
MR. BUKHENIK: Yes.
MR. JACKSON: When was that?
MR. BUKHENIK: It was about two weeks ago and then last week, I believe.
MR. JACKSON: And what was discussed generally?
MR. BUKHENIK: Generally, we discussed portions of the case that I would be presenting.
MR. JACKSON: Did you write a report about your communications with Mr. Lally?
MR. BUKHENIK: No, I did not.
MR. JACKSON: Okay. Were you shown any of the videos that you've seen here in anticipation of your testimony?
MR. BUKHENIK: Not during the first meeting. I did review a video during the second time.
MR. JACKSON: Okay. And that video that you did see the second time was the interior video of the sally port that we saw yesterday, correct?
MR. BUKHENIK: I'm just trying to remember exactly what video I saw. I had reviewed videos outside of our meetings. So I don't remember exactly what video Mr. Lally showed me.
MR. JACKSON: But you do recall seeing the video that you saw yesterday, the sort of clear one that has the crime scene tape being put up and all that? You have seen that one before?
MR. BUKHENIK: Yes.
MR. JACKSON: And that was with Mr. Lally, correct?
MR. BUKHENIK: That is not correct because I do not recall when I saw that video or what video I saw with Mr. Lally.
MR. JACKSON: I see. All right. I'd like to talk about that Exhibit 446 for a second, and then I'll show it to you. You indicated that the video that you -- all the videos, everything that you saw yesterday, was true and accurate, correct, based on your memory of the events that were memorialized in the video?
MR. BUKHENIK: The video captures events taking place in accurate fashion, yes.
MR. JACKSON: In an accurate fashion. All right. That's what I wanted to find out. And, after you watched the video, I think you were asked by Mr. Lally does the video show you or Trooper Proctor having access to or messing with in any way that right rear taillight in any fashion. And you said, never.
MR. BUKHENIK: I was asked if at any point Trooper Proctor and I had come into contact, I believe, or touched the vehicle and that portion of the vehicle. And I said, never, we never touched the vehicle prior to it being properly processed with a search warrant.
MR. JACKSON: And that was the -- specifically, his question was to, and his answer was to, the right rear portion of the vehicle, right? The right rear taillight?
MR. BUKHENIK: The right rear damaged taillight.
MR. JACKSON: With the Court's permission, I'd like to play a portion of Exhibit 446.
JUDGE CANNONE: All right.
MR. JACKSON: Before we begin playing it, Mr. Bates, if you wouldn't mind, may I inquire of the witness, Your Honor, just to lay a foundation?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Sergeant, do you recognize this as being the video that we saw yesterday?
MR. BUKHENIK: It does look accurate, yes.
MR. JACKSON: Okay. I just wanted to make sure we were on the same page. This is 446, just so you have it in mind if I reference that.
MR. JACKSON: Mr. Bates, if you could play that and I think to runtime 1:20.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
BY MR. JACKSON:
MR. JACKSON: Do you recognize that as the video we saw yesterday?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: Very briefly, if you could move to time of day to 5:37:05. With the Court's permission, can we play this point?
JUDGE CANNONE: Yes.
(Whereupon, the video is played.)
BY MR. JACKSON:
MR. JACKSON: All right. That shows the vehicle coming into the sally port. And we are looking at which side of the vehicle?
MR. BUKHENIK: So that is the driver's side of the vehicle. What that video depicts is a mirror collection. Although mirrors are accurate representation of what you are seeing, it's just inverted. So that is the driver's side of the vehicle. I do not know why it is inverted, but that's the way it was presented, collected and presented, from Canton Police.
MR. JACKSON: Can you see a timestamp or a time and date stamp on the bottom of that? It's in blue.
MR. BUKHENIK: I cannot, no.
MR. JACKSON: Okay. Does it appear that that time and date stamp, if you can't read every letter on it, that that is in correct order? In other words, that's not inverted?
MR. BUKHENIK: I cannot read it, no.
MR. JACKSON: Let's go and play this for a second.
(Whereupon, the video is played.)
BY MR. JACKSON:
MR. JACKSON: Who is that that just got out of the car?
MR. BUKHENIK: I do not know. I think that's the tow truck driver. He would have the only access to the vehicle. We did not touch the vehicle.
MR. JACKSON: Who's that on the left?
MR. BUKHENIK: I missed it. I was looking down at the laser pointer. I do not know. I know for a fact I'm the gentleman that's wearing a dark, olive drab state police baseball-style hat; and Trooper Mike Proctor is wearing a winter hat.
MR. JACKSON: Trooper Proctor is wearing what?
MR. BUKHENIK: A winter hat.
MR. JACKSON: Can you back that up just a little bit? That was playing and I didn't realize it was playing while you were talking. Okay. Stop.
(Whereupon, the video is paused.)
BY MR. JACKSON:
MR. JACKSON: Yesterday when you testified, you indicated that the two individuals in this scene were you and Trooper Proctor, correct?
MR. BUKHENIK: That is not correct. There was two individuals in the rear of the vehicle I shined my light to. That was me and Trooper Proctor.
MR. JACKSON: Do you see Trooper Proctor toward the back or the rear of the vehicle there?
MR. BUKHENIK: I can't tell because of the -- where the head is. I just know that Trooper Proctor was wearing a black hat.
MR. JACKSON: Which the person in the video to the left to the rear of the car is wearing a black hat, correct?
MR. BUKHENIK: I can't tell. I don't want to be locked into a statement where later on you show me that it's somebody else magically. I can't testify to that.
MR. JACKSON: There's no magic about this. It's your testimony. I'm just asking you what you see.
MR. BUKHENIK: I don't see that, no.
MR. JACKSON: Let's go ahead and play it at this point.
(Whereupon, the video is played.)
MR. JACKSON: Pause.
MR. JACKSON: Do you see the person toward the back of the vehicle walking toward the opposite side of the SUV?
MR. BUKHENIK: I do.
MR. JACKSON: What area does he appear to be going to?
MR. BUKHENIK: He appears to be going towards the rear passenger side of the vehicle, although it does not appear so because the video is inverted, a mirror image. That's where he's going.
MR. JACKSON: And, Sergeant Bukhenik, you testified for at least a half an hour about this video yesterday, correct?
MR. BUKHENIK: I'm sorry. It was a long day. I don't know the timing of how long I testified.
MR. JACKSON: You significantly testified about this video yesterday; did you not?
MR. BUKHENIK: I testified about this video.
MR. JACKSON: And you testified that it was true and accurate, correct?
MR. BUKHENIK: Correct.
MR. JACKSON: And you testified it was reflective of your observations of what was happening in that sally port that evening, correct?
MR. BUKHENIK: I testified that this is an accurate scene and collection of video evidence from the sally port.
MR. JACKSON: And, as that truck sits in that sally port just like this, it appears from all perspective that what we are looking at is the passenger side of the car, and that right rear taillight is right there, shining in our face, correct, from this perspective?
MR. BUKHENIK: I'm sorry. Can you repeat the question?
MR. JACKSON: From this perspective, from the perspective that the jurors are looking at, from all indications, that would appear to be the right side of the truck, the passenger side of the truck. And that taillight that you can see is the right rear taillight from this perspective, correct?
MR. BUKHENIK: The way it presents itself, yes.
MR. JACKSON: And yesterday during the entirety of your questioning by Mr. Lally, not once did you mention that this video is actually completely inverted, correct?
MR. BUKHENIK: I did not, no.
MR. JACKSON: Mr. Lally didn't ask you if it was inverted, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And, if I hadn't gotten up here and begun questioning you, that would be left uncorrected, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: The person with the winter cap appears to walk directly to what ultimately should be the right rear taillight of this car, correct?
MR. BUKHENIK: That's the vicinity, yes.
MR. JACKSON: Okay. Let's go ahead and play this.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
MR. JACKSON: I'd like you to pay attention to the right rear of this car. And I know we are completely backward. But at the far corner of the car, do you see a person's head there?
MR. BUKHENIK: It appears as if someone is still there.
MR. JACKSON: And that person is located at or near what portion of the car?
MR. BUKHENIK: In real life or as it's depicted?
MR. JACKSON: Is the person the -- in real life near the right rear taillight of the car?
MR. BUKHENIK: Yes.
MR. JACKSON: As a matter of fact, standing there, hovering around there, correct?
MR. BUKHENIK: We don't know the distance that they are in proximity to the actual vehicle. We just know that they are behind the vehicle.
MR. JACKSON: Well, it looks like it's pretty close, doesn't it, Sergeant?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Doesn't that look like he's in close proximity to the right rear taillight?
MR. BUKHENIK: As I said, I can't tell how far away he is from the vehicle.
MR. JACKSON: His head is right there, sir. You can't tell that he's right next to the right rear taillight?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: All right. I want you to pay attention to what that person does as soon as the other person comes out from behind that car. See if you see any movement.
(Whereupon, the video is played.)
MR. JACKSON: Stop it.
(Whereupon, the video is paused.)
BY MR. JACKSON:
MR. JACKSON: Did you see that person move?
MR. BUKHENIK: I saw movement in the frame, yes.
MR. JACKSON: Right when the other person is in eyesight of the person toward the right rear, correct?
MR. BUKHENIK: I mean, the video speaks for itself. I --
MR. JACKSON: Yeah, it does.
MR. LALLY: Objection.
JUDGE CANNONE: The objection is sustained. No commenting, Mr. Jackson.
MR. JACKSON: Yes, Your Honor. I am going to ask Mr. Bates to back it up because there is one other issue I want you to pay attention to if you can right at this moment or right before this moment and, that is, the timestamp. Back it up maybe 10 seconds. Right about there. Don't play it yet.
BY MR. JACKSON:
MR. JACKSON: Instead of paying attention to the individuals, I'm going to ask you, can you see --
MR. JACKSON: May I approach the screen, Your Honor?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Can you see the timestamp at 5:37:37 p.m.? Can you see that from where you're at?
MR. BUKHENIK: No, I cannot.
MR. JACKSON: Me, neither. That's why I had to walk up to it.
MR. JACKSON: Let's play it for about 10 seconds.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
BY MR. JACKSON:
MR. JACKSON: Did you see another person just appear toward the rear end of the car?
MR. BUKHENIK: There was a fog of some sorts. It did appear as if a person was actually in -- there was two people back there and two people walked away or one person walked away.
MR. JACKSON: And, in fact, the timestamp jumped to 5:38:01, correct?
MR. BUKHENIK: I cannot see the timestamp, sir.
MR. JACKSON: Okay. Did it appear that there was an anomaly and there was a portion of that video that was deleted or it's missing? Not deleted but just missing.
MR. LALLY: Objection.
JUDGE CANNONE: Can you tell that? Does it appear that way to you, Sergeant?
MR. BUKHENIK: No, Your Honor. I cannot tell what is happening with the video.
BY MR. JACKSON:
MR. JACKSON: If you take a look, a close look, there is a classic police car in that sally port, correct?
MR. BUKHENIK: There is an antique vehicle there, yes. Yes.
MR. JACKSON: If you take a close look at the trunk of that vehicle, do you see the word "police"?
MR. BUKHENIK: Yes. I believe I can read that. Yes.
MR. JACKSON: And it's backward, correct?
MR. BUKHENIK: It is mirrored. Correct.
MR. JACKSON: That's a good indication that this is a inverted video, right?
MR. BUKHENIK: It appears that way, yes.
MR. JACKSON: And, if we were to fast forward at 5:42 -- about another 20 seconds, Mr. Bates. There you go. If you could just play it at this point.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Do you see the sally port garage --
MR. BUKHENIK: Yes.
MR. JACKSON: Do you see a number on the garage?
MR. BUKHENIK: I do.
MR. JACKSON: Is that correct?
MR. BUKHENIK: What is correct?
MR. JACKSON: Does the number appear correct? Is that how you make a "4"?
MR. BUKHENIK: No. That number is in the mirror image. Yes.
MR. JACKSON: Okay. I just wanted to make the point. Everything in this video is completely backward, correct?
MR. BUKHENIK: It's not backward. It's mirrored, reversed. You can look yourself in the mirror in the morning, and you still see your own face. It's not backwards.
MR. JACKSON: But my mirror image is not an accurate depiction of who I am. My actual physical appearance is who I am, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: A mirror image, Sergeant, is not an accurate video of this, is it?
MR. LALLY: Objection.
BY MR. JACKSON:
MR. JACKSON: It's a mirror image by definition?
JUDGE CANNONE: Sustained. Ask it differently, Mr. Jackson.
MR. JACKSON: Your Honor, thank you. I don't think I need to. I would like to mark -- I have a thumb drive that I'd like to have marked with the Court's permission.
JUDGE CANNONE: Mr. Lally, do you know what's on this thumb drive without you telling us?
MR. LALLY: I do not.
MR. JACKSON: If we can approach and I can certainly bring it up.
JUDGE CANNONE: We are trying to wrap up our morning. It's marked for identification.
(Whereupon, thumb drive with video was entered and marked Exhibit "XX" for Identification.)
MR. JACKSON: If I may, Your Honor, I'd like to play the first 10 seconds of that video.
JUDGE CANNONE: No. We'll come to sidebar. It's marked for identification, right?
MR. JACKSON: It is.
COURT REPORTER: "XX" for Identification.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Why in the world do you think that I would let you play something the Commonwealth has never seen?
MR. JACKSON: Because it is a -- we got this last night. We did it last night because we just figured out that this was a completely incorrect video that the Commonwealth introduced. And all I did is I inverted it.
JUDGE CANNONE: Okay. So it doesn't help to say it's incorrect. Tell me what --
MR. JACKSON: It is incorrect.
JUDGE CANNONE: Tell me what you did and tell me what you have. So you've got a --
MR. JACKSON: I've got the exact same video to the bit and byte, but it's inverted correctly.
JUDGE CANNONE: Okay.
MR. JACKSON: It even has the timestamp backward.
JUDGE CANNONE: How long is it?
MR. JACKSON: Oh, it's exactly the same amount of time as this, which is maybe five and a half minutes. But I'm not going to play the whole thing.
JUDGE CANNONE: Okay. So you are not going to play any of it until the Commonwealth sees it. So the Commonwealth needs a copy of it. He's going to have to come back. I imagine you've got redirect, right?
MR. LALLY: Yes.
MR. JACKSON: Your Honor, if I could get this done -- I can tell the Court, as an officer of the Court, I have not, we have not, done anything to this video except the correct way. It's how it should have been in the first place. This is a complete -- it's a complete deception in terms of where everything is. I want the jurors to see that when you reverse it, that is the car in the sally port. I don't have to ask a bunch of questions about it. I want them to see the car in the correct way and one time before two days of this is over.
JUDGE CANNONE: Okay. So if you had given this to the prosecutor this morning, I would have given him time to look at it. Are you objecting?
MR. LALLY: I cannot until I see what it is.
JUDGE CANNONE: Okay.
MR. JACKSON: If we could take a 30-second break, I could place the 10 seconds that I want to play and then we are done. I'm only going to play 10 seconds of this.
JUDGE CANNONE: Do you have redirect of him anyway?
MR. LALLY: I do.
JUDGE CANNONE: So we have to come back anyway.
MR. LALLY: I think so.
JUDGE CANNONE: All right. So we can do it later with him. If this is the end of -- I understand we've got a day and then the weekend. I understand that.
MR. JACKSON: I would just like to get done. There's a closure that I think I'm entitled to.
JUDGE CANNONE: No. I understand. You want to have a big score just before the weekend. It's perfectly understandable. But if you had this last night, coming into this morning, it could have been sent over to the Commonwealth and we could have avoided this. And I understand. So you can either end now without you being done -- I can just call it a day if this is the end of your cross.
MR. JACKSON: It is the end of my cross.
JUDGE CANNONE: Okay. So I will just call it a day, give you an opportunity to do this first thing Monday. If there are any objections, I'll hear from the Commonwealth before we even come in and you can end it Monday.
MR. JACKSON: Okay. That's fine.
JUDGE CANNONE: I would do the same, actually, if it were reversed. It wouldn't even be a question. All right? Where do we stand for time, because the jurors want to know when we are going to finish? Mr. Lally, when do you think you'll finish?
MR. LALLY: I think the same as I said yesterday. You know, ideally, the 17th. But, you know, most likely at some point on the 18th.
MR. JACKSON: If we get started on the 18th, I think we'll need five days to do our entire case.
JUDGE CANNONE: Okay. So do you want me to tell them that you expect to finish with the evidence -- the 19th is a holiday.
MR. JACKSON: It's Juneteenth.
MR. YANNETTI: Have you made a decision on the 21st?
JUDGE CANNONE: Excuse me?
MR. YANNETTI: Have you made a decision on the 21st?
JUDGE CANNONE: I had the court officers tell the jurors that -- and I shouldn't be talking about it -- moving another case without the lawyers in that case being here. But I'm seeing if the jurors are available, then I might take the next step on that. So let's say you don't start on the 18th. So if you do 20, 21, 22 -- 20, 21, 24, 25, you'll finish by the 26th?
MR. JACKSON: Maybe even the 25th. I'm giving myself an extra day. I think we can get through with pretty decent alacrity.
JUDGE CANNONE: Mr. Lally, are you sure you're going to finish by the 18th?
MR. LALLY: Sure? I'm not sure of anything based on the number of witnesses and not knowing cross-examination length and things like that. But I'm relatively confident that we can do that given especially if we're going full days four out of five days next week and then two more full days. We should. Mr. McLaughlin was just going through with me -- I think we have about 12 witnesses left. I think we can get through 12 witnesses in six days.
JUDGE CANNONE: Okay. I think I can safely tell the jury without being more specific now and tell them I'll be more specific next week. But I think I can tell the jury that they will get this case for deliberations the last week in June.
MR. JACKSON: Yes. Yes, including closing arguments, the whole thing.
JUDGE CANNONE: They will get it for deliberations.
MR. JACKSON: Yes.
JUDGE CANNONE: All right. I am going to send them home.
MR. JACKSON: Okay.
MR. LALLY: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Jurors, I know that you want to know when this case is going to end, and I don't mean that in any negative way. After speaking with the lawyers, I can safely say that you will get this case for your deliberations sometime the last week in June. We will know better next week. We will not be in session next Tuesday. We will go full days, Monday, Wednesday, Thursday, Friday next week. We will not be in session next Tuesday. I have to give you those cautions again. Please do not discuss this case with anyone. Don't do any independent research or investigation into this case. If you happen to see, hear or read anything about this case, please disregard it and let us know. Have a great weekend. We'll see you Monday morning.
(Whereupon, the jury is escorted from the courtroom and excused for the day.)
JUDGE CANNONE: All right. So I received a motion from the Commonwealth this morning that I have not had an opportunity to read yet. It's on my desk. I'd like to go spend a few minutes looking at that and come back out at 12:00 o'clock on that.
MR. JACKSON: In order for us to argue it?
JUDGE CANNONE: Yes. Do you need --
MR. JACKSON: I haven't looked at it, either. We've been busy.
JUDGE CANNONE: All right.
MR. JACKSON: Could we do it on Monday?
JUDGE CANNONE: I want to get as much evidence in as we can. We can do it at 8:30 Monday morning.
MR. JACKSON: That's fine with me.
MR. LALLY: Yes.
MR. JACKSON: That's absolutely fine with us, not that it matters what we would like.
JUDGE CANNONE: Can we do it at 8:30 Monday morning?
MR. LALLY: If that's what the Court wants, yes.
JUDGE CANNONE: We'll have a hearing on it at 8:30, Monday. Are you around tomorrow? Are you around tomorrow?
MR. JACKSON: Oh, am I? Yes. Absolutely.
JUDGE CANNONE: Do you want to do it tomorrow morning?
MR. LALLY: If I have a preference, I would say Monday.
JUDGE CANNONE: All right. We'll do it on Monday morning at 8:30. And, if you want to put something in writing, just email it.
MR. JACKSON: Will do. Thank you, Your Honor. I appreciate it.
JUDGE CANNONE: See you then.
(Whereupon, the Court adjourned.)