Commonwealth v. Read — Trial ArchiveYuri Bukhenik — Direct (Part 2)
556 linesP R O C E E D I N G S June 6, 2024
(Court in session at 9:08 a.m.)
(Defendant present. Jury not present.)
JUDGE CANNONE: Could I see counsel at sidebar?
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Hi. A couple of things about the scheduling and exhibits. One thing I'm going to do this morning is I'm going to strike Exhibit 463, the receipts. Mr. Jackson is right that there has not been an appropriate foundation laid. The others came in through the Waterfall through the bartender. We need somebody from there.
MR. LALLY: If I could just on that, I had Jean DeMulis on the witness list who I intended to call. When I talked to counsel about that, whether or not I needed to call that person in order to get in the video and/or the receipts, I was told that that was fine, and they stipulated to that. So that is why I'm a little --
MR. JACKSON: Let me talk to co-counsel about that.
JUDGE CANNONE: Okay.
MR. JACKSON: Perhaps we can -- I do want to avoid another witness if we can.
JUDGE CANNONE: All right.
MR. JACKSON: My biggest issue was Bukhenik reading from the receipts as if they are his --
JUDGE CANNONE: No. So I went back and listened again last night. So he read the first two Tito's and then he read Coors Light before you objected.
MR. JACKSON: Right.
JUDGE CANNONE: When you objected, I immediately sustained it. And then I thought you were objecting for that reason; it was in, and you came to sidebar, and you came to sidebar and said you thought it was already in evidence and I know it wasn't in evidence. And then you raised the authenticity argument. So you can talk about that, but it brings me to an important point. This is the first case I've ever tried as a judge where I don't really have access to the exhibits. They seem to be back at the D.A.'s table, and I understand it's for organizational purposes. There was a time yesterday after that I was thinking, I haven't even read this. What I remember seeing -- this was a grand jury exhibit, right?
MR. LALLY: Yes.
JUDGE CANNONE: I remember seeing -- I don't remember seeing all of the last page that I just saw this morning when I took this out of where it was, the other gentleman's receipt or something. The bottom line is I need access to the exhibits so that if I have a question on it, I can look at it when Madam Clerk is marking exhibits or when I've seen the video for the fifth time or something. And I don't have that yet, and it's troublesome to me. So I would like all of the paper exhibits for each day to be held with the clerk where they're supposed to be held during the day. And, if you all need them, the clerk will hand them to you. If I need them, the clerk can just hand them back to me. At the end of the day, I have no problem -- I think it was great that the Commonwealth seems to be organizing these, which seems like a big job for you. This is 463. So how many more do we have? Do we have another 100 or 200 more exhibits?
MR. LALLY: In total, I don't know if it's 100, but it's probably somewhere between 15 and 75.
JUDGE CANNONE: Okay. I get it. There are a lot of exhibits. But I would have appreciated having this yesterday. I do take them from the witness, but oftentimes I take them from the witness and we come over here. I don't really have a chance to look at them. Those were my two points from this morning. Can you figure this out right away?
MR. LALLY: In ten seconds.
JUDGE CANNONE: Okay. I'll wait. Tim? You can line them up.
COURT OFFICER: Yes. Your Honor.
MR. JACKSON: I don't want Mr. Lally to have to call another witness to lay the foundation, which I'm sure he can. We'll just stipulate to it. Again, my only issue was Sergeant Bukhenik, who has no personal knowledge of any of the data on it. He's just reading from it. He spent like 15 minutes reading the Tito's.
JUDGE CANNONE: No. And when you objected to it, I sustained it. That was prior to it coming in.
MR. JACKSON: Right. So I don't think that it needs to be stricken. I mean, I --
JUDGE CANNONE: All right. So you are not objecting to its authenticity. You are withdrawing your objection to its authenticity that you raised yesterday?
MR. JACKSON: Correct.
JUDGE CANNONE: Okay.
MR. JACKSON: That can be done. That's great, though. And the other thing, I will tell the jury today that we are off on Tuesday. They want to know where we are. And now I asked the court officer to ask the jurors -- I have my sentencing in Lopes on the 21st. I may end up continuing that, which I know causes all kinds of problems for the D.A.'s office, and I regret that. We can't keep these jurors any longer. I'm afraid they are going to go right into the 4th of July.
MR. JACKSON: That's my fear.
JUDGE CANNONE: All right. So we will figure out scheduling. But I did ask the court officers to ask the jurors, if they were told the 21st was a day off, ask if they'd be available and we'll know that at the end of the day. So before we break at 12 and give the Commonwealth and the defense to tell me a ballpark of when they think the jury will get this case for deliberation.
MR. JACKSON: Will do.
MS. MCLAUGHLIN: Your Honor, there are four exhibit books that contain all of the exhibits. Do you want them up here?
JUDGE CANNONE: I don't think we have room for all of them.
MS. MCLAUGHLIN: Can they be maintained in that corner or do you want --
JUDGE CANNONE: Sure. Wherever you are. But whatever comes in today stays with the clerk from today. And, at the end of the day -- I don't mean the bags of evidence. It's the papers and photographs, if you don't display all of them.
MS. MCLAUGHLIN: Would it be helpful to provide copies to the Court in advance when we know certain things are coming in?
JUDGE CANNONE: If you only have 53 exhibits coming in from here on, that would make things maybe easier, and I would just keep them here.
MS. MCLAUGHLIN: Okay.
JUDGE CANNONE: It's problematic when I want to find something to look at, which happens a lot.
MS. MCLAUGHLIN: I understand.
JUDGE CANNONE: All right. Are we all set?
MR. LALLY: We are. So let us know. Talk during the break about when you think the jury will get the case.
MR. YANNETTI: Will do.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: All right. You can bring them in.
(Whereupon, the jury is escorted into the courtroom and seated in the jury box at 9:15 a.m.)
COURT CLERK: 22-117, the Commonwealth versus Karen Read. Could I have the witness, please.
JUDGE CANNONE: Good morning again, counsel, and Ms. Read. Good morning jurors. We appreciate your patience. Giving us this time actually helps streamline things today. So we appreciate that. I do have to ask you those three questions. Were you all able to follow the instructions and refrain from doing any independent research or investigation into this case since we left? Were you also able to follow the instructions and refrain from discussing this case with anyone since we left yesterday? Did anyone happen to see, hear or read anything about this case since we left yesterday? Thank you very much. Everybody answered those questions appropriately. Okay. Can we have Sergeant Bukhenik, please.
Whereupon, YURIY BUKHENIK, Resuming having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: All right, Mr. Lally. Whenever you're ready.
MR. LALLY: Thank you, Your Honor. CONTINUED DIRECT EXAMINATION
BY MR. LALLY:
MR. LALLY: Good morning, sir.
MR. BUKHENIK: Good morning, sir.
MR. LALLY: To circle back just to a couple of things from your testimony from yesterday. Going back to the video that you reviewed from both C.F. McCarthy's and the Waterfall, in total from those two videos, how many drinks did you observe the defendant consuming over her time there?
MR. BUKHENIK: The video shows nine drinks being consumed by the defendant.
MR. LALLY: And that's between when she arrives at C.F. McCarthy's until the time that she leaves the Waterfall; is that correct?
MR. BUKHENIK: That is correct.
MR. LALLY: And, if I could turn your attention to the Ring videos from One Meadows Avenue, Mr. O'Keefe's residence, from the videos that you observed -- well, let me ask you first as far as do you know how those cameras work as far as when they turn on and when they turn off?
MR. BUKHENIK: My understanding is that Ring surveillance video is triggered to be recorded through motion. So if the camera detects motion which is constantly live monitoring and motion is detected, then that video is captured to a cloud-based system that retains that footage.
MR. LALLY: And, from your review of those videos, what kind of motion would set those off, like what kind of things would be recorded from the driveway camera video?
MR. BUKHENIK: The activity in the driveway such as a person walking through, a bird landing, a vehicle pulling in, individuals moving around in the driveway and so forth.
MR. LALLY: The search warrant that was applied for was any and all videos between January 24th and January 30th, correct?
MR. BUKHENIK: For one of the search warrants, that's correct, yes.
MR. LALLY: And, with respect to that time frame, what, if any, activity based on information that you had received was not available or was not shown on those Ring videos?
MR. BUKHENIK: The data returned had video that would have been captured from the defendant arriving home after midnight on the 29th after she dropped Mr. O'Keefe off at 34 Fairview Road. That video was not present in the data that was returned from Ring.
MR. LALLY: What, if any, other video in addition to that one was not present?
MR. BUKHENIK: There is also video missing from the defendant, showing Ms. McCabe and Ms. Roberts, the damage to her right rear taillight.
MR. LALLY: And what, if any, followup or what, if any, inquiry was then done with regard to Ring as far as those types of videos or deletion or how those videos could not be present?
MR. BUKHENIK: Correspondence with Ring produced information that --
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
BY MR. LALLY:
MR. LALLY: Let me ask this first. Was there followup with Ring in regard to those videos?
MR. BUKHENIK: Yes, there was.
MR. LALLY: And was there ever anything produced with regard to those videos or those time frames from Ring?
MR. BUKHENIK: No, there was not.
MR. LALLY: If I could turn your attention over to your time in Dighton just in reference to subsequent to that, later on. What, if anything, did you receive or what, if anything, did you request or what, if anything, did you receive from the Dighton Police in regard to January 29th, 2022?
MR. BUKHENIK: I communicated with the Dighton Police Department, requesting documentation from their office's call for service at our request and log notes, logs from their dispatching center, as well as any reports that would document their activity if such reports existed.
MR. LALLY: What, if any, information did you receive in relation to that?
MR. BUKHENIK: I received a log note or a log printout from their CAD system, and I received a report authored by Officer Barros.
MR. LALLY: And did you also receive any 911 calls?
MR. BUKHENIK: Yes.
MR. LALLY: And who was the party as far as the 911 caller in regard to those 911 calls that you received?
MR. BUKHENIK: Mr. Read.
MR. LALLY: And, again, just for clarity purposes, that's the defendant's father; is that correct?
MR. BUKHENIK: That is correct.
MR. LALLY: And that's from the morning of January 29th; is that also correct?
MR. BUKHENIK: That is correct.
MR. LALLY: Now, sir, if I could turn your attention to February 3rd, 2022. At some point that morning, where did you go?
MR. BUKHENIK: During the morning hours of February 3rd, we planned to meet at 34 Fairview Road. Myself, Trooper Proctor and Trooper DiCicco arrived at that location in order to conduct a secondary search of the area as the temperatures were turning and the snow was melting naturally. We decided to do another search for articles that were now, we realized and learned, were missing and could be of evidentiary value and aid in the investigation.
MR. LALLY: And with respect to going to 34 Fairview Road, what, if any, tools or what, if anything, did you bring with you, you and the other troopers, in regard to conducting that secondary search?
MR. BUKHENIK: I requested that troopers bring shovels, rakes, anything like gardening items that would help them to dig through the snow and locate any missing items.
MR. LALLY: And, as far as the temperature change that you're talking about, how precipitous a change are we talking about?
MR. BUKHENIK: The temperatures went above freezing. So the snow did begin to melt, and it was significantly warmer compared to the 18 degrees the night of the incident.
MR. LALLY: Now, you mentioned items of evidentiary value that you had learned of and were looking for. What, if any, clothing items of Mr. O'Keefe were you looking for specifically on February 3rd?
MR. BUKHENIK: We were specifically looking for Mr. O'Keefe's baseball cap.
MR. LALLY: And, in addition to yourself, Trooper Proctor and Trooper DiCicco, who, if anyone, else did you notify or who, if anyone, from any other unit within the state police responded that day, as well?
MR. BUKHENIK: We requested assistance of the Crime Scene Services Section of the Massachusetts State Police. And Trooper Evan Brent showed up to assist us with documentation of the location and the evidence that we were hopefully going to find.
MR. LALLY: And, from those, Trooper Brent arrived and took photographs; is that correct?
MR. BUKHENIK: That's correct.
MR. LALLY: And when was it that Trooper Brent arrived in relation to your arrival?
MR. BUKHENIK: I believe he was already present when we pulled up, but I'm not sure to his exact time of arrival.
MR. LALLY: And, with regard to that day, what, if anything, in general terms, what, if anything, were you able to locate and where was it, generally speaking?
MR. BUKHENIK: We located Mr. O'Keefe's baseball hat. We located a drinking straw from a cocktail glass. We located items of plastic, colored plastic and other shards of colored plastic at the location. All those items were located on the grass portion of the yard near the flagpole at 34 Fairview Road.
MR. LALLY: And, Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: Your Honor, may I have a moment?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sergeant, I'm going to show you a series of photos. I'm going to break this up a little bit.
JUDGE CANNONE: Mr. Lally, with your back to the jurors, I'm sure they can't hear you.
MR. LALLY: My apologies, Your Honor.
BY MR. LALLY:
MR. LALLY: So, sir, what I'm going to do is I'm going to show you some photographs, a series of them, and I am going to break them up a little bit just to make it hopefully quicker. Sir, first I'm going to show you 10 photographs and ask you if you could view those and look up when you're finished.
MR. BUKHENIK: (Witness complies.)
MR. LALLY: Do you recognize those, sir?
MR. BUKHENIK: Yes, I do.
MR. LALLY: And what do you recognize those to be?
MR. BUKHENIK: Those are the photographs documenting the items located at 34 Fairview Road on the grass as the snow receded through the melting temperatures that were revealed to be positioned in the grass.
MR. LALLY: And what's contained in those photographs, is that a fair and accurate portrayal of what you observed on the front lawn area of 34 Fairview Road on February 3rd?
MR. BUKHENIK: Yes, it is.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce them as the next exhibits.
JUDGE CANNONE: Any objection, Mr. Jackson?
MR. JACKSON: No objection.
(Whereupon, photographs were entered and marked Exhibits No. 468 through 477 in Evidence.)
COURT REPORTER: Exhibits 468 through 477, Your Honor.
JUDGE CANNONE: Thank you.
MR. LALLY: And, Your Honor, with the Court's permission if I could just ask to publish some of these photos for the jury?
JUDGE CANNONE: Yes.
MR. LALLY: Just one moment, Your Honor. And, Ms. Gilman, if I could start with Photograph 7659.
BY MR. LALLY:
MR. LALLY: And, Sergeant, do you recognize what's up on the screen and what has now been marked as Exhibit 468?
MR. BUKHENIK: I do.
MR. LALLY: And, if you could, just for orientation purposes, describe for the jury whereabouts in relation to 34 Fairview Road we are in this picture?
MR. BUKHENIK: Standing on the street at Fairview Road, we are looking at the left side of the yard. In the top right corner, you can tell that there is a flagpole depicted in that photograph and a telephone switch box that's open on the left side which is on the border of 34 Fairview Road.
MR. LALLY: And if I could ask, from the photographs, if you know, the grass that's visible on the front lawn area of 34 Fairview Road, is that from a natural melting process or is that from some of the tools that you and the other troopers used to assist you in your secondary search?
MR. BUKHENIK: The reason that grass was exposed is due to processing of the scene and having the snow being moved away from the location and then natural melting process taking place on top of it. As you can tell, other portions of the yard is covered in snow and the grass has not revealed itself just yet.
MR. LALLY: Now, as far as the photographs of various items that were located on this date of February 3rd, the photographs that were taken, were they taken as they lay or were they touched or manipulated in any way prior to the photograph being taken?
MR. BUKHENIK: The items photographed were discovered as soon as we realized what is being discovered through the digging and excavation process. They would then photograph instantly. Certain items were revealed naturally through the melting process and the snow, you know, no longer concealing those items underneath.
MR. LALLY: Thank you.
MR. LALLY: Ms. Gilman, could I have Photograph 7666.
BY MR. LALLY:
MR. LALLY: And, again, sir, do you recognize what's up on the screen and has now been marked as Exhibit 470?
MR. BUKHENIK: I do.
MR. LALLY: And what do you recognize that to be?
MR. BUKHENIK: That is a clear black and red piece of plastic.
MR. LALLY: And, Ms. Gilman, if I could have Photograph 7669.
MR. LALLY: And, Sergeant, do you recognize what's now up on the screen as Exhibit 473?
MR. BUKHENIK: Yes. That is another piece of plastic.
MR. LALLY: And, sort of towards the top middle of the screen, do you recognize what that is?
MR. BUKHENIK: Yes. That's a fire hydrant from 34 Fairview Road, grass area.
MR. LALLY: And, Ms. Gilman, if I could have the next photograph, 4670. And, for the record, this is Exhibit 474.
MR. LALLY: Do you recognize that, sir?
MR. BUKHENIK: Yes, sir.
MR. LALLY: And is that a closer-up image of what was depicted in the prior exhibit?
MR. BUKHENIK: Yes, it is.
MR. LALLY: And, Ms. Gilman, if I could have Photograph 7672.
MR. LALLY: And, sir, do you recognize what's up on the screen which has now been marked as Exhibit 476?
MR. BUKHENIK: I do.
MR. LALLY: And what do you recognize that to be?
MR. BUKHENIK: Another piece of red taillight plastic.
MR. LALLY: And, lastly, from this batch, Ms. Gilman, if I could have Photograph 7673.
MR. LALLY: And, again, sir, do you recognize what's up on the screen depicted in what's now marked as Exhibit 477?
MR. BUKHENIK: I do.
MR. LALLY: And what do recognize that to be?
MR. BUKHENIK: That is the fire hydrant and the telephone switch box located on the edge of the property line at 34 Fairview Road.
MR. LALLY: Now, the photographs that I have just placed before you, have you had a chance to review those?
MR. BUKHENIK: I have.
MR. LALLY: And do you recognize what's depicted in those photographs?
MR. BUKHENIK: I do.
MR. LALLY: And what do you recognize those to be?
MR. BUKHENIK: The property at 34 Fairview Road, left corner, towards the street, capturing the flagpole and telephone switch box.
MR. LALLY: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth seeks to introduce and admit as the next 10 exhibits.
MR. JACKSON: No objection.
JUDGE CANNONE: Okay.
(Whereupon, photographs were entered and marked Exhibits No. 478 through 487 in Evidence.)
COURT REPORTER: Exhibits 478 through 487.
JUDGE CANNONE: Thank you.
MR. LALLY: Your Honor, with the Court's permission, if I could publish some of the photos for this set?
JUDGE CANNONE: Okay.
MR. LALLY: Ms. Gilman, if I could have Photograph 7681.
BY MR. LALLY:
MR. LALLY: Sergeant, do you recognize what's up on the screen that has now been marked as Exhibit 481?
MR. BUKHENIK: I do.
MR. LALLY: And if you could describe to the jury what is depicted in this photograph?
MR. BUKHENIK: A red piece of plastic.
MR. LALLY: And, Ms. Gilman, if I could have the next one, 7682.
JUDGE CANNONE: Can you use the pointer to show us?
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: Thank you.
MR. LALLY: Thank you, Your Honor. Ms. Gilman, 7682.
BY MR. LALLY:
MR. LALLY: And, Sergeant, do you recognize what's depicted on the screen that has now been marked as Exhibit 482?
MR. BUKHENIK: I do.
JUDGE CANNONE: I'm going to see counsel at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So have we not seen these before?
MR. LALLY: You have seen them as far as the lab photographs. What I'm trying to do as quickly as I can is go through not every single piece but some of the pieces as far as where they are located, where they are found.
JUDGE CANNONE: Okay. But I think we just saw three views of one in the last one. Just put it up and say, what are we looking at, instead of, can I orientate you to what's been marked. Just get right to it. And new, different things -- I understand if you have to put pieces together to justify or explain how the lab got it. But just try to move it along. You are losing them, for one thing. I couldn't even see where that glass was. If he's going to put it up, have him show what you want to show. And, again, when you look down, we can't hear you.
MR. LALLY: I apologize.
JUDGE CANNONE: You don't have to apologize. Hold it up here and read it if you have to but just keep your voice up because I am going to have to turn the air-conditioning off.
MR. LALLY: Okay. No. I don't want that.
JUDGE CANNONE: Okay.
(Whereupon, the sidebar conference concluded.)
MR. LALLY: Ms. Gilman, 7682.
BY MR. LALLY:
MR. LALLY: Sergeant, do you recognize what's up on the screen as Exhibit 482?
MR. BUKHENIK: I do.
MR. LALLY: What do you recognize that to be?
MR. BUKHENIK: A red piece of plastic.
MR. LALLY: Is that the same piece of plastic but a closer-up image from the prior exhibit?
MR. BUKHENIK: Yes, it is.
MR. LALLY: Ms. Gilman, if I could have Photograph 7684.
MR. LALLY: Sergeant, do you recognize what's up on the screen and has now been marked as Exhibit 484?
MR. BUKHENIK: I do.
MR. LALLY: And what do you recognize that to be?
MR. BUKHENIK: A white clear piece of plastic and a red piece of plastic.
MR. LALLY: Lastly, from this, sir --
MR. LALLY: Ms. Gilman, if I could have 7687.
MR. LALLY: Sir, again, do you recognize what's up on the screen that has now been marked as Exhibit 487?
MR. BUKHENIK: I do.
MR. LALLY: Now, Sergeant, with reference to the photos before you, have you had a chance to review that set of 10, as well?
MR. BUKHENIK: Not this one yet. Not yet.
MR. LALLY: If you could, please.
MR. BUKHENIK: (Witness complies.)
MR. LALLY: Sergeant, do you recognize what's depicted in those photographs?
MR. BUKHENIK: I do.
MR. LALLY: What do you recognize those to be?
MR. BUKHENIK: Items that were located in the street, being the black cocktail drinking straw and then black pieces of plastic, molding plastic, and clear pieces of molding from the taillight.
MR. LALLY: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next 10 exhibits.
JUDGE CANNONE: Any objection, Mr. Jackson?
MR. JACKSON: None, Your Honor.
(Whereupon, photographs were entered and marked Exhibits No. 488 through 497 in Evidence.)
COURT REPORTER: Exhibits 488 through 497.
JUDGE CANNONE: Thank you.
MR. LALLY: Your Honor, with the Court's permission, if I could display some of these photographs for the jury?
JUDGE CANNONE: Okay.
MR. LALLY: Ms. Gilman, if I could have 7688.
BY MR. LALLY:
MR. LALLY: Sergeant, do you recognize what's up on the screen?
MR. BUKHENIK: I do.
MR. LALLY: What do you recognize it to be?
MR. BUKHENIK: It's a wide shot of the drinking straw being found on the edge of the roadway in front of 34 Fairview Road.
MR. LALLY: Sergeant, if you could, using the laser pointer before you, if you could direct the jury's attention to where you observed that straw?
MR. BUKHENIK: (Indicating).
MR. LALLY: And, Ms. Gilman, if I could have 7689.
MR. LALLY: Sergeant, what are we looking at in this photograph?
MR. BUKHENIK: It's a closeup view of the same straw.
MR. LALLY: Ms. Gilman, if I could have 7692.
MR. LALLY: Sergeant, do you recognize what's up on the screen that has now been marked as Exhibit 492?
MR. BUKHENIK: I do.
MR. LALLY: And what are we looking at in 492?
MR. BUKHENIK: A piece of plastic next to a measuring ruler that's provided for comparison by the crime scene photographer to document the item.
MR. LALLY: And, Ms. Gilman, if I could have 7695. For the record, this is now Exhibit 494.
MR. LALLY: Sergeant, what are we looking at in 494?
MR. BUKHENIK: It's the same item from just prior, just zoomed in more, showing the detail of the black molding, the clear, white -- clear plastic and the red plastic.
MR. LALLY: Sergeant, as far as those photographs before you, have you had a chance to review those?
MR. BUKHENIK: Yes, I have.
MR. LALLY: And do you recognize what those are?
MR. BUKHENIK: Yes, I do.
MR. LALLY: What do you recognize those to be?
MR. BUKHENIK: They are pieces of red plastic, pieces of clear plastic and a piece of glass.
MR. LALLY: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next 10 exhibits.
MR. JACKSON: No objection.
(Whereupon, photographs were entered and marked as Exhibits No. 498 through 508 in Evidence.)
COURT REPORTER: Exhibits 498 through 508.
JUDGE CANNONE: Thank you.
MR. LALLY: Your Honor, with the Court's permission, if I could publish a few of these photographs for the jury, as well?
JUDGE CANNONE: Okay.
MR. LALLY: And, Ms. Gilman, if I could have Photograph 7700. For the record, this is now Exhibit 419.
BY MR. LALLY:
MR. LALLY: Sergeant, if you could describe for the jury what we are looking at here?
MR. BUKHENIK: We are looking at a red piece of plastic next to a measuring ruler near the grass on the property at 34 Fairview Road, by the road.
MR. LALLY: And, if you could, sir, using that laser pointer, just direct the jury's attention to where you observed that item to be within this photograph?
MR. BUKHENIK: Right there (indicating).
MR. LALLY: Ms. Gilman, if I could have Photograph 7705. And, for the record, this is Exhibit 502.
MR. LALLY: And, Sergeant, if you could, again, describe to the jury what, if anything, is noted there?
MR. BUKHENIK: It's a shard of red plastic next to a measuring ruler.
MR. LALLY: Ms. Gilman, if I could have Photograph 7708. For the record, this is now Exhibit 504.
MR. LALLY: Again, Sergeant, if you could, using the laser pointer, direct the jury's to what, if anything, of significance you noted in this area.
MR. BUKHENIK: There is a black piece of plastic molding next to a measuring ruler.
MR. LALLY: And, lastly from this set, Ms. Gilman, Photo No. 7712. And, again, for the record, this is Exhibit 508.
MR. LALLY: And, Sergeant, if you could, using the laser pointer, direct the jury's attention to what, if anything, of significance you note in this?
MR. BUKHENIK: A clear piece of plastic next to a measuring ruler.
MR. LALLY: And that was found on the grass area, as well; is that correct?
MR. BUKHENIK: That is correct.
MR. LALLY: Now, sergeant, with regard to that new set of photos before you, have you had a chance to review those?
MR. BUKHENIK: Yes, I have.
MR. LALLY: And do you recognize what's contained within those photographs?
MR. BUKHENIK: Yes, I do.
MR. LALLY: And what do you recognize those photographs to contain?
MR. BUKHENIK: They contain small, red pieces of plastic from 34 Fairview Road on the grass area where we located the others. Also contained, a flimsy piece of circular, like very malleable plastic, clear plastic, in addition to that.
MR. LALLY: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next 10 exhibits.
MR. JACKSON: No objection.
(Whereupon, photographs were entered and marked Exhibits No. 509 through 518 in Evidence.)
COURT REPORTER: Exhibits 509 through 518.
MR. LALLY: And, Your Honor, may I publish some of these photographs for the jury?
JUDGE CANNONE: Yes.
MR. LALLY: Ms. Gilman, if I could have Photograph 7715. For the record, this is now Exhibit 511.
BY MR. LALLY:
MR. LALLY: Sergeant, directing your attention to the screen, if you could, using that laser pointer direct the jury's attention to what, if anything, of significance you observed in this photograph?
MR. BUKHENIK: That is the thin, malleable, circular in shape piece of clear plastic that was located in the lawn area of 34 Fairview Road.
MR. LALLY: Lastly, Sergeant, there is that set of photos that I just placed before you. Have you had a chance to review those?
MR. BUKHENIK: Yes.
MR. LALLY: And do you recognize what's depicted in those photographs, sir?
MR. BUKHENIK: Yes, I do.
MR. LALLY: And what do you recognize those to be?
MR. BUKHENIK: Those are items recovered in the lawn at 34 Fairview Road. Those items are a shard of glass, a BPD baseball hat with an American flag, and stains of blood.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next 16 exhibits.
MR. JACKSON: No objection.
(Whereupon, photographs were entered and marked Exhibits No. 519 through 534 in Evidence.)
COURT REPORTER: Exhibits 518 through 534.
JUDGE CANNONE: Five what?
COURT REPORTER: Thirty-four, Your Honor. Exhibits 519 through 534.
JUDGE CANNONE: Thank you very much.
MR. LALLY: Your Honor, with the Court's permission, may I publish some of these photos for the jury, as well?
JUDGE CANNONE: Yes.
MR. LALLY: Ms. Gilman, if I could have Photograph 7727. For the record, this is now Exhibit 520.
MR. LALLY: Again, Sergeant, if you could direct the jury's attention to what, if anything, of significance you observed in this photograph?
MR. BUKHENIK: I observed a shard of glass next to a measuring ruler.
MR. LALLY: And, Ms. Gilman, if I could have 7729? For the record, this is Exhibit 522.
MR. LALLY: Again, Sergeant, if you could describe for the jury what we are looking at here?
MR. BUKHENIK: It is a larger piece of red plastic with black molding around the edge, located next to the telephone switch box on the grass area at 34 Fairview Road.
MR. LALLY: Ms. Gilman, if I could have Photograph 7733. For the record, this is Exhibit 526.
MR. LALLY: Sergeant, from this photograph, what, if anything, are we looking at here?
MR. BUKHENIK: This photograph here depicts the area which we are excavating during the morning hours of February 3rd, 2022. As the shovel works its way towards the grass, my laser pointer is directing your attention to Mr. O'Keefe's hat that was compacted underneath the snow on the ground.
MR. LALLY: Now, as far as this photograph is concerned, does that accurately depict the depth of the snow that you were digging into and sifting through on the morning of February 3rd?
MR. BUKHENIK: It does.
MR. LALLY: And that, again, is several days after the blizzard of January 29th, correct?
MR. BUKHENIK: That is correct.
MR. LALLY: And, Ms. Gilman, if I could have Photograph 7740. For the record, this is Exhibit 530.
MR. LALLY: And, again, Sergeant, if you could describe to the jury what we are looking at here?
MR. BUKHENIK: We are looking at Mr. O'Keefe's hat on the grass, pressed down and compacted to a flat surface underneath the snow which has been excavated around it.
MR. LALLY: Thank you very much, sir.
MR. LALLY: Ms. Gilman, you can take that down. Thank you, Mr. Officer.
MR. LALLY: Sergeant, on February 3rd, 2022, is that the first time that you had been at 34 Fairview Road?
MR. BUKHENIK: Yes, it is.
MR. LALLY: And, with respect -- if I could turn your attention briefly to the following day of February 4th, did you have occasion to go back to 34 Fairview Road on that day?
MR. BUKHENIK: Yes, I did.
MR. LALLY: And what brought you to 34 Fairview Road on February 4th?
MR. BUKHENIK: Having excavated those items on the 3rd, I directed the troopers in my office, who obviously reside in the communities around us, to make a point to travel by that location every day on the way to work and every day on the way home. The purpose of that was to see if anything else was to reveal itself as the snow naturally melts away and items could present themselves. So on February 4th, as I am traveling to work, I diverted my typical route of travel to go by 34 Fairview Road. Just prior to my arrival, I received a call stating that there was Canton Police representatives at the scene and more items have been revealed due to the melting snow and that I should come, you know, to collect those items. I was down the street. I arrived and collected the items that presented itself.
MR. LALLY: And, if you recall that item that you collected on February 4th, was that located on the lawn, on the street or something else?
MR. BUKHENIK: It was on the lawn.
MR. LALLY: Now, with reference to your collection of these items either on February 3rd, February 4th or on any sort of subsequent day, how were they collected and what exactly did you do with them in reference to the seizing of the items and storage of the items?
MR. BUKHENIK: Each item that was collected was placed in an evidence paper bag. The collection was done by utilizing Latex gloves to prevent any transfer of evidence from fingerprints or DNA onto those items. Then those items were transported to our office, logged into the system and stored in the evidence locker at the office.
MR. LALLY: And each of those respective bags of items or evidence, they were sealed, as well; is that correct?
MR. BUKHENIK: That's correct.
MR. LALLY: Now, turning your attention to February 10th of 2022, did you have occasion to go back to 34 Fairview Road on that day, as well?
MR. BUKHENIK: I did.
MR. LALLY: And what, if anything, did you observe or what, if anything, did you seize on that particular day?
MR. BUKHENIK: We seized more shards of glass and plastic.
MR. LALLY: And, if you know or if you recall, how many pieces did you seize on that particular day?
MR. BUKHENIK: My memory is exhausted to that but the exact number is annotated on the bags that the items were placed into.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, I'm showing you a document and just ask you to look at that section and look when you are through.
MR. BUKHENIK: (Witness complies.)
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sergeant, is your memory refreshed as to how many items and what the items were that you recovered on February 10th?
MR. BUKHENIK: Yes, it is.
MR. LALLY: And what were those items and how many, sir?
MR. BUKHENIK: There were six items of clear, red and black plastic and 14 items of plastic and glass.
MR. LALLY: Now, in addition to the dates that you were present at 34 Fairview Road and recovered items, them being February 3rd, February 4th and February 10th, were there other dates that you're aware of that items were recovered by troopers that you supervised?
MR. BUKHENIK: Yes.
MR. LALLY: And, if you recall, what were those dates?
MR. BUKHENIK: The dates were January 29th, February 11th and February 18th.
MR. LALLY: Were there items recovered on February 8th, as well?
MR. BUKHENIK: Yes.
MR. LALLY: Now, as far as your direction or having -- let me first start with you. So on the dates that you were there, February 3rd, 4th and 10th, were you alone on those dates or were there other troopers with you when you were there?
MR. BUKHENIK: On the 4th, I was alone as far as state police personnel. There were other Canton law enforcement representatives at the scene with me as I collected that one item. On the other days, I was accompanied by other troopers.
MR. LALLY: And, as far as you know, obviously not being present, but from your supervision of these troopers, were there other occasions where individuals were at 34 Fairview Road, were they alone or were they with a group of troopers?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
BY MR. LALLY:
MR. LALLY: Now, as far as the items that were recovered when you were there on February 3rd, February 4th and February 10th, did you have occasion to bring those items with you to court today?
MR. BUKHENIK: Yes, I did.
MR. LALLY: And, Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: I'm presenting you with a box. First, I'd just ask if you recognize that box?
MR. BUKHENIK: I do.
MR. LALLY: And what do you recognize that to be?
MR. BUKHENIK: It's a box storing items logged into evidence as they relate to this case.
MR. LALLY: Your Honor, with the Court's permission, may the sergeant open the box?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Now, first, Sergeant, with regard to the items as far as plastic and/or glass that you recovered from 34 Fairview Road on February 3rd, if you could locate those items? And, Sergeant, with respect to each of those bags, they contain items of evidentiary value, whether they be plastic or glass, that were recovered on February 3rd; is that correct?
MR. BUKHENIK: That's correct.
MR. LALLY: And I'm sorry. How many bags in total do you have there before you?
MR. BUKHENIK: I have three bags, two containing broken glass and plastic, the stirring straw, broken red plastic and clear plastic and a bag containing one black Boston Police Department hat.
MR. LALLY: Your Honor, the Commonwealth would seek to introduce and admit as the next three exhibits.
MR. JACKSON: No objection.
JUDGE CANNONE: No objection.
(Whereupon, evidence bags containing plastic, glass and hat were entered and marked Exhibits No. 535, 536 and 537 in Evidence.)
MR. LALLY: Your Honor, with respect to what's now been marked as Exhibit 537, with the Court's permission, may the sergeant remove that item, the hat, and display it for the jury?
JUDGE CANNONE: Yes.
(Witness complies.)
BY MR. LALLY:
MR. LALLY: Thank you, sir. If you could place that back in the bag. And, Sergeant, from your observations of Mr. O'Keefe on surveillance video from both C.F. McCarthy's and the Waterfall on January 29th, what, if any, similarities did you observe between the hat, which you just displayed and located on the lawn of 34 Fairview Road, and the hat Mr. O'Keefe is wearing in those videos?
MR. BUKHENIK: It appears to be the same exact hat.
MR. LALLY: Now, Sergeant, with reference to the box of other items, if you could remove what, if any, items you recovered and seized from 34 Fairview Road on February 4th.
MR. BUKHENIK: (Witness complies.)
MR. LALLY: And, again, sir, just for the record, what's contained within that bag from February 4th?
MR. BUKHENIK: Contained within the bag is a piece of red, hard plastic taillight cover.
MR. LALLY: Your Honor, the Commonwealth would introduce and seek to admit as the next exhibit.
MR. JACKSON: No objection.
(Whereupon, evidence bag containing piece of plastic is entered and marked Exhibit 538 in Evidence.)
COURT REPORTER: Exhibit 538.
BY MR. LALLY:
MR. LALLY: Lastly, Sergeant, with regard to the box, if you could remove the items that you seized from February 10th, 2022?
MR. BUKHENIK: (Witness complies.)
MR. LALLY: And, Sergeant, with respect to those two bags of items, if you could just inform the jury what is contained within those bags?
MR. BUKHENIK: The bag labeled Item No. 10 contains six pieces of red, black and clear plastic. Bag labeled No. 11 is containing 14 pieces of glass and plastic fragments.
MR. LALLY: Thank you, Sergeant.
MR. LALLY: Your Honor, the Commonwealth would seek to introduce and admit as the next two exhibits.
JUDGE CANNONE: Any objection, Mr. Jackson?
MR. JACKSON: No, Your Honor. Thank you.
(Whereupon, bag containing red, black and clear plastic pieces was entered and marked Exhibit No. 539 in Evidence.)
(Whereupon, bag containing 14 pieces of glass and plastic fragments was entered and marked Exhibit No. 540 in Evidence.)
COURT REPORTER: Exhibits 539 and 540, Your Honor.
MR. JACKSON: I'm sorry. Was that 539 and 540?
COURT REPORTER: Yes.
BY MR. LALLY:
MR. LALLY: Moving on from that, if I could bring you back just one last time to the Ring videos from One Meadows Ave. as far as you had testified earlier that there was no video that you observed of the defendant, Ms. McCabe and Ms. Roberts looking at the passenger side taillight area of the vehicle, correct?
MR. BUKHENIK: That's correct.
MR. LALLY: Was there any video of the defendant, Ms. McCabe and Ms. Roberts actually leaving from One Meadows Ave. on that morning of January 29th?
MR. BUKHENIK: There was not.
MR. LALLY: Now, as far as the videos that were not there as far as the defendant, Ms. McCabe and Ms. Roberts leaving, the next video depicted Mr. Camerano arriving at the residence to pick up Ms. (c) correct?
MR. BUKHENIK: Yes. That's correct.
MR. LALLY: And, with regard to the missing video of the defendant arriving at One Meadows Ave. on January 29th sometime after midnight, the video immediately preceding that again would have been Mr. Camerano arriving and picking up his daughter from One Meadows Avenue sometime around 11:30 p.m., correct?
MR. BUKHENIK: Correct.
MR. LALLY: And those videos were both present, correct?
MR. BUKHENIK: That's correct.
MR. LALLY: If I could bring you back to February 3rd, 2022, on that date did you have occasion to meet with a gentleman by the name of Brian Higgins?
MR. BUKHENIK: Yes, I did.
MR. LALLY: And, when you met with Mr. Higgins, who, if anyone, from your office was with you when you met him?
MR. BUKHENIK: Trooper Mike Proctor from my office was present during that interview.
MR. LALLY: And, during the course of that interview, what, if any documentation, did Mr. Higgins provide you with?
MR. BUKHENIK: Mr. Higgins provided me with a printout of a Cellebrite extraction containing conversations via text message between him and Mr. John O'Keefe and between him and the defendant. He also provided a digital copy of the same extraction on a CD.
MR. LALLY: Now, what, if anything, did you advise Mr. Higgins of at that time as far as Mr. O'Keefe's phone and the defendant's phone?
MR. BUKHENIK: I advised Mr. Higgins that we were in possession of both of those devices and would have the extraction and accurate documentation of those conversations.
MR. LALLY: And did he seem to understand that when you told him that?
MR. BUKHENIK: Yes. He understood it.
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Move to strike.
JUDGE CANNONE: I'll strike that.
BY MR. LALLY:
MR. LALLY: Now, also on February 3rd, at some point did you have occasion to go inside of 34 Fairview Road?
MR. BUKHENIK: Yes, I did.
MR. LALLY: And who, if anyone, did you interview inside of 34 Fairview Road on that date?
MR. BUKHENIK: I interviewed Ms. Albert.
MR. LALLY: And that would be, just for the record, Nicole Albert; is that correct?
MR. BUKHENIK: That's correct.
MR. LALLY: And who, if anyone, was present with you during that interview of Nicole Albert?
MR. BUKHENIK: Trooper Michael Proctor was present.
MR. LALLY: Anybody else from the Albert family present in the home or present during the course of that interview?
MR. BUKHENIK: Mr. Brian Albert was also present. I don't know who else exactly was present in the home. I just know that those two residents were in the room with us.
MR. LALLY: And where was Brian Albert at the time that you conducted the interview of Nicole Albert?
MR. BUKHENIK: In the room with us, seated next to her.
MR. LALLY: Now, with reference to -- I'm going to ask you just a little bit about sort of the interview process as far as the interviews that you conducted in this case.
MR. BUKHENIK: Yes, sir.
MR. LALLY: If you could, describe for the jury starting with sort of how many people from your unit are present for a given interview and how those interviews are conducted.
MR. BUKHENIK: We conduct interviews always in pairs. I think I mentioned it yesterday. Typically, during a regular investigation into a homicide or any death investigation, we pair up our troopers with a local detective. In this instance, since Canton had recused themselves from the interview portion of the investigation, they were not going to provide manpower for those interviews to be conducted. Thus we had to utilize only troopers from our office in order to conduct those interviews.
MR. LALLY: Typically, obviously not perfect, but as far as the interviews that you were present for, about how long a period of time, generally speaking, were the interviews that you conducted in this case?
MR. BUKHENIK: From my experience, I have learned that to fully communicate a course of recollection of events that an individuals observes, experiences or is aware of and understand every detail of that experience, it would take approximately 45 minutes at a minimum to conduct a full interview with a witness in detail.
MR. LALLY: Now, sir, if I could turn your attention to June 9th of 2022. On that date at some point did you have occasion to meet with the defendant?
MR. BUKHENIK: Yes, I did.
MR. LALLY: At some point during that meeting, did you have conversation with the defendant?
MR. BUKHENIK: Yes, I did.
MR. LALLY: And was that conversation or at least portions of it memorialized in any way?
MR. BUKHENIK: Yes, it was.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, I'm showing you a disk. Does that contain an audio recording -- to the best of your knowledge, does that contain a audio recording of a portion of your conversation with Ms. Read on June 9th, 2022?
MR. BUKHENIK: Yes, it does.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next exhibit.
JUDGE CANNONE: Yes. No objection, Mr. Jackson?
MR. JACKSON: No objection.
(Whereupon, CD with interview Re: Karen Read excerpt was entered and marked Exhibit No. 541 in Evidence.)
JUDGE CANNONE: Folks, before we play this, please be mindful of the instruction from yesterday. You are allowed to hear statements allegedly made by the defendant allegedly concerning the crimes with which he's charged in this case. Before you can consider any such statement as evidence, the Commonwealth must prove to you beyond a reasonable doubt that the defendant made the statement she's alleged to have made and that she made it voluntarily, freely and rationally. In determining whether the statement made by the defendant was voluntary or not, you may consider all the surrounding circumstances. These include when and where the statement was made, the nature of any conversations with the police or any questioning by the police, the defendant's physical and mental condition, including her intelligence, age, education, experience and personality. Your decision does not turn upon any one factor, and you must consider the totality of the surrounding circumstances.
MR. LALLY: Your Honor, with the Court's permission, may we publish that for the jury at this time?
JUDGE CANNONE: Yes. Do you want to turn off the air-conditioning? This is very short, right?
MR. LALLY: It is very short and if we could, please, yes.
JUDGE CANNONE: And this is just audio?
MR. LALLY: Yes, Your Honor.
(Whereupon, the CD is played.)
MR. LALLY: Thank you.
BY MR. LALLY:
MR. LALLY: Now, Sergeant, upon hearing that statement from the defendant, what was your reaction?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
BY MR. LALLY:
MR. LALLY: Upon hearing that statement, what, if anything, did you do?
MR. BUKHENIK: I advised the defendant not to further speak.
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow that.
BY MR. LALLY:
MR. LALLY: Now, at some point over the course of your investigation, were you made aware of forensic findings relating to the defendant's taillight?
MR. BUKHENIK: Yes, I was.
MR. LALLY: And specifically DNA findings?
MR. BUKHENIK: Yes.
MR. LALLY: And specifically that there were --
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: Your Honor, may we approach?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
MR. LALLY: So, Your Honor, what I intend to ask him and what I expect his response to be -- what I'm trying to get into is the fact that a buccal swab was taken of him and Trooper Proctor and then sent off to the lab, not anything about the results. And I'm not going to be asking him about any positive results as it relates to Mr. O'Keefe but just simply that he's aware that there were multiple contributors listed in the results. Therefore, he voluntarily provided his buccal swab to be submitted to the lab for testing.
MR. JACKSON: All of that is predicated on hearsay. He can certainly testify. I don't think there's any issue of him testifying did you submit yourself to a buccal swab and give one. Everything else --
JUDGE CANNONE: That's it. You can't say why he did it based on results. You can just say that he voluntarily did it and if he saw anybody else do it, if you want to --
MR. LALLY: Okay. Understood.
JUDGE CANNONE: Thank you.
(Whereupon, the sidebar conference concluded.)
MR. LALLY: Your Honor, may I have one more moment?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: So, Sergeant Bukhenik, on January 16th, 2024, at some point in that day did you meet with a Sergeant Gallerani of the Needham Police Department?
MR. BUKHENIK: I did.
MR. LALLY: And who, if anyone else -- well, let me ask you this: As far as any other troopers from your office, who, if anyone else, was there with yourself and Sergeant Gallerani?
MR. BUKHENIK: Trooper Mike Proctor.
MR. LALLY: And what was the purpose of your meeting with Sergeant Gallerani and Trooper Proctor on that morning?
MR. BUKHENIK: Collection of our DNA.
MR. LALLY: And was that something that you did voluntary?
MR. BUKHENIK: Yes.
MR. LALLY: And how was it that the sergeant collected your DNA?
MR. BUKHENIK: Through a buccal swab.
MR. LALLY: And were you present when Trooper Proctor submitted to a buccal swab, as well?
MR. BUKHENIK: Yes, I was.
MR. LALLY: And, as far as the swabbings that were taken from both yourself and Trooper Proctor, were those logged into evidence by you or did Sergeant Gallerani take them with him when he left?
MR. BUKHENIK: Sergeant Gallerani took them with him when he left.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: My apologies, Your Honor. Thank you very much, Sergeant. Your Honor, I have no further questions.
JUDGE CANNONE: Mr. Jackson, cross-examination?
MR. JACKSON: Thank you, Your Honor.