Commonwealth v. Read — Trial ArchiveYuri Bukhenik - Cross/Redirect/Recross
396 linesJUDGE CANNONE: Can we get Sgt. Bukhenik, please? [unintelligible: brief exchange regarding flash drive exhibit] All right, Mr. Jackson.
MR. JACKSON: Thank you. So when we left off on Thursday, we were discussing the sallyport video that was introduced by the Commonwealth on Wednesday during direct examination. Do you recall that?
MR. BUKHENIK: I do.
MR. JACKSON: When he introduced that video, Mr. Lally asked you several very specific questions about the video, including if you recognized the video in general. Correct?
MR. BUKHENIK: Yes.
MR. JACKSON: You did, and you said you did.
MR. BUKHENIK: I did.
MR. JACKSON: He also asked you whether you recognized any of the individuals in the video at a particular time where he paused the video, and you used your green laser pointer to point out a couple of individuals that you recognized. Do you recall that?
MR. BUKHENIK: I do.
MR. JACKSON: And in that pause, you indicated at that time on Wednesday that you recognized Trooper Proctor and what you thought was yourself — the person slipping at the front of the SUV. Correct?
MR. BUKHENIK: I indicated that Trooper Proctor and myself were in the video, and there was an individual slipping in the front of the vehicle.
MR. JACKSON: And then on Thursday you corrected that to make sure that we were clear about it — the person slipping was actually the tow driver, not you. Correct?
MR. BUKHENIK: That's what it appeared, so yes.
MR. JACKSON: Okay. I'd like to take a quick look at that with the Court's permission at 446. May I publish that?
JUDGE CANNONE: Yes.
MR. JACKSON: This is 446. It's the same video that you were shown by Mr. Lally. We're at — I'm sorry, I said runtime, I meant time of day. Thank you. The time of day is about 5:37 p.m. As a matter of fact, the time of day will be most easily seen right down here, although it's pretty small from where you're at. If you can't see that, please let me know.
MR. BUKHENIK: I do not see that now.
MR. JACKSON: Okay — Your Honor — hold off on that question just — I may ask the court for relief in just a moment. If we can play this for just a quick second — you can pause it. Let me pause there. Okay. Sergeant, this is the video — the point at which it was paused when Mr. Lally asked you to identify the individuals in the video. Correct?
MR. BUKHENIK: I believe it was a different time, but I'm not sure.
MR. JACKSON: Do you remember using your green laser pointer, pointing at the person in the back and identifying that person as Trooper Proctor, and then pointing at the person in the front — mistakenly, understandably mistakenly — as yourself? You remember that?
MR. BUKHENIK: I remember indicating where the individuals would be, yes.
MR. JACKSON: Okay. And so do you have the green laser pointer with you?
MR. BUKHENIK: I do.
MR. JACKSON: Could you point at the location where you see Trooper Proctor?
MR. BUKHENIK: I do not know specifically right now if that is Trooper Proctor behind the vehicle, but when Mr. Lally asked me to indicate where we would be, it was in this location here.
MR. JACKSON: You're indicating toward the rear of the SUV. Correct? On Wednesday — and I just want to draw your attention back to your testimony on Wednesday — you used the laser pointer and pointed at two different individuals: the person toward the back, and you identified him as Trooper Proctor. Correct?
MR. BUKHENIK: On Wednesday I indicated that Trooper Proctor and myself would be in the shot in the rear of the vehicle, and then I indicated that I'm wearing an olive drab baseball hat and Trooper Proctor is wearing a winter-style knit black hat.
MR. JACKSON: Isn't it true that on Wednesday, the question you were asked from Mr. Lally — "Miss Gilman, if you can just pause there for a moment as the Sergeant's almost falling in the video" — and the court said "keep your voice up, Mr. Lally." Do you recall that?
MR. BUKHENIK: I do not recall that now.
MR. JACKSON: Do you remember Mr. Lally saying, "Sergeant Bukhenik, with reference to any of the individuals you see in this video, do you recognize any of those individuals?" and you responding, "I can recognize Trooper Proctor and myself," and you used the green laser pointer in doing so?
MR. BUKHENIK: Yes, I did, and that was on this area — may not be to the frame, but this is where the video was paused when you made that identification.
MR. JACKSON: Correct?
MR. BUKHENIK: It was approximately at this time.
MR. JACKSON: Okay. So you were then asked — after you identified — and at that time you did identify Trooper Proctor, and again, mistakenly, yourself. Correct?
MR. BUKHENIK: I directed the laser to the area where we would be.
MR. JACKSON: Okay. And Trooper Proctor is the one toward the back of the truck. Again, if you—
MR. BUKHENIK: I cannot tell you which individual — there are multiple individuals there. I do not know at this point, where it's frozen, if that's exactly Trooper Proctor. I know we were present at that location, and I know what he was wearing for a headdress and what I was wearing.
JUDGE CANNONE: You have to move along from this point.
MR. JACKSON: Then why did you — one more question, Your Honor — then why on Wednesday did you indicate very clearly the person toward the back of the SUV was Trooper Proctor, if you don't know? Why did you say that on Wednesday during that frame?
MR. BUKHENIK: I could tell there were two individuals back there, and I was at one point in time in that location with Trooper Proctor — that appeared to be Trooper Proctor in the back of the car. From where the video is frozen right now, I cannot tell.
MR. JACKSON: So you're changing your testimony from Wednesday?
JUDGE CANNONE: Jackson—
MR. JACKSON: Are you changing your testimony?
MR. BUKHENIK: I am not changing my testimony.
JUDGE CANNONE: Now — okay. Next question, Mr. Jackson.
MR. JACKSON: You... You were then asked whether the video was true and accurate in terms of its depiction of what you saw, what you observed in the sallyport that night, correct?
MR. BUKHENIK: I indicated the video is true and accurate to the location.
MR. JACKSON: You were then asked whether or not, in looking at that video watching it, either you or Trooper Proctor approached, manipulated, touched that right rear tail light at any time, and your answer was "Never," correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And while you testified, this is the video that was displayed for the jurors, correct? But it was — it was this orientation, the front of the truck facing right, the rear of the truck facing left, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And for all appearances it would appear that the right rear tail light of the SUV is the one facing the jurors, if you will, facing the viewer, right?
MR. BUKHENIK: From appearances — [unintelligible]. Can you rephrase that question, please?
MR. JACKSON: Sure. Just from the appearance of the video as it is now, the appearance of the video looks like the right rear tail light is the tail light that's facing the jurors, facing the viewer, toward the rear of the truck, correct, as it is frozen?
MR. BUKHENIK: Correct.
MR. JACKSON: And on Wednesday — I want to move through this relatively briefly, Sergeant — on Wednesday, you did not mention that this video was inverted, did you?
MR. BUKHENIK: It was not brought out, no.
MR. JACKSON: "Not brought out" — I mean, that's a passive way of saying it. I'm asking you directly, did you mention that this was an inverted video?
MR. BUKHENIK: Not on Wednesday, no.
MR. JACKSON: On Thursday, Mr. Lally finished his questioning on Wednesday, then came back on Thursday. You continued on direct examination under questioning by Mr. Lally again to start the day, correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: And during that testimony on Thursday morning, you also, under direct examination, did not mention that this video was inverted, did you?
MR. BUKHENIK: Did not, no.
MR. JACKSON: And then it was my turn to ask you questions. You recall that?
MR. BUKHENIK: I do.
MR. JACKSON: And then I began asking you questions about the accuracy of this video. And at that time, for the first time, you said it appears that it is a mirror image — it's an inverted video, correct?
MR. BUKHENIK: I advised you that it is a mirrored image at that point, correct.
MR. JACKSON: Would you agree with me, now as you sit here, that this video as we're looking at it is not a true and accurate depiction of what you viewed in that sallyport that night?
MR. BUKHENIK: I would not agree with you, no.
MR. JACKSON: Do you believe that what the jurors are seeing right here is true and accurate surveillance footage of the sallyport that night?
MR. BUKHENIK: Yes, it's just mirrored, which means what's left is right and what's right is left. Correct. If the jurors were actually standing where the camera is recording — which is recording an accurate depiction of activity and events taking place — the back of the vehicle would be on the right and the front of the vehicle would be on the left, but all activity is accurately depicted in the video.
MR. JACKSON: So in point of fact, everything in this video — every bit of it — is reversed, correct?
MR. BUKHENIK: It's just a mirror image.
MR. JACKSON: So it's not accurate, is it?
MR. BUKHENIK: It's an accurate depiction of what was taking place.
MR. JACKSON: If I were to ask you — let me give you a hypothetical. A suspect was being identified by five witnesses based on a tattoo on that person's left arm. And then you go show that witness — or that series of witnesses — an inverted version of a photograph of that person, with the tattoo appearing on his right arm. And those witnesses all say, "Nope, that's not the guy. I remember the guy — the guy had the tat on the left arm." Would you think that that's an accurate depiction of the person with the tattoo?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you agree with me that an inverted video is not accurate?
MR. BUKHENIK: It's inverted by definition, right. It's an accurate depiction of the events taking place.
MR. JACKSON: You've reviewed this video in its entirety, you testified, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: About how long would you say this video is in its runtime from start to finish?
MR. BUKHENIK: I did not take note of the length of the video.
MR. JACKSON: All right, I'm going to ask you — uh, Mr. Woll, if you could — Court's permission — can you just pull the cursor back to the beginning of the time of day for this video and pause it there. Can you see — and I, this is not an eye exam — can you see the timestamp on the lower left-hand side?
MR. BUKHENIK: No, I cannot.
MR. JACKSON: With your permission, I can do this to see it.
PARENTHETICAL: [Sidebar]
JUDGE CANNONE: You are unmuted. Jurors, sometimes lawyers have what we call stipulations. Rather than prolonging either testimony or calling an additional witness, lawyers agree as to certain facts. So what the lawyers have agreed to here is that this video begins at 5:30 and 23 seconds — 5:30 p.m. and 23 seconds — and it ends at 5:48 and 15 seconds, and the total runtime of the video is 5 minutes and 51 seconds. All right, your questions, Mr. Jackson.
MR. JACKSON: Thank you for that, your honor. Sergeant Bukhenik, given the fact that the beginning time — the time of day is 5:30 and 23 seconds in the evening — and the end time of this video stops at 5:48 and 15 seconds, would you agree with me, without doing the math down to the seconds, that's about 17 minutes and 50 seconds or so in real time?
MR. BUKHENIK: Yes.
MR. JACKSON: In real time. The actual time of this video — the runtime of this video — however is only 5 minutes and 51 seconds, less than 6 minutes. You'd agree with that?
MR. BUKHENIK: That is what's captured.
MR. JACKSON: So that means that about two-thirds of the video is missing, correct?
MR. BUKHENIK: It's not missing, just not recorded.
MR. JACKSON: It's not there.
MR. BUKHENIK: It was never there.
MR. JACKSON: I'm not saying it was ever there. I'm saying — I don't know if it was ever there or not, neither do you. I'm saying it's not there, correct?
MR. BUKHENIK: It was never recorded.
MR. JACKSON: Well, you don't know what has been or how it wasn't recorded, do you?
JUDGE CANNONE: Jackson, I'll let him answer that.
MR. BUKHENIK: I can only speak to what was turned over and what we received. And based on the evidence that was produced, the video that was produced is what we got.
MR. JACKSON: I understand. So based on that answer, you acknowledge you don't know what may or may not have been recorded without your knowledge?
MR. BUKHENIK: No.
MR. JACKSON: Right. Did you notice that there were obvious portions of the video in which individuals just seem to appear or apparate out of nowhere? It's not a smooth recording of the events.
MR. BUKHENIK: When the motion triggers the recording, the video appears as if a person appeared in the video, but that is due to the triggering of the recording.
MR. JACKSON: Well, you don't know what it's due to, because you're not an IT person who actually captured this video, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Ask that differently.
MR. JACKSON: Sure. You're not the IT person — the technical person who captured this video, correct?
MR. BUKHENIK: I am not, no.
MR. JACKSON: You don't maintain this video system, do you?
MR. BUKHENIK: I do not.
MR. JACKSON: You don't know the inner workings of how the video system was originally installed or how it operates, correct?
MR. BUKHENIK: Based on my training and experience, I know that certain systems — due to the restriction of the storage of the system — they try to save the storage and trigger the recording only by motion or certain time parameters. So in this video footage, I could tell you that the video is triggered by motion to record.
MR. JACKSON: How much storage did this system have?
MR. BUKHENIK: I do not know.
MR. JACKSON: What was the level of storage at the time that this video was taken? Was it 60%? Was it 99%? What was it?
MR. BUKHENIK: I do not know.
MR. JACKSON: So you actually don't know, Sergeant, the inner workings of this system, do you?
MR. BUKHENIK: I do not know all the inner workings of the system.
MR. JACKSON: But you do know that there appears to be portions of this video missing and portions of this video in which people just seem to materialize out of nowhere.
MR. BUKHENIK: It's not missing, it just was not recording.
MR. JACKSON: Let's move to — um, I think it's 5:37 — few seconds. Okay. With the Court's permission, can we play about less than a minute?
PARENTHETICAL: [Video plays.]
JUDGE CANNONE: Yes.
MR. JACKSON: You see where the person that was toward the back of the vehicle went in this video?
MR. BUKHENIK: It appeared they went behind the vehicle.
MR. JACKSON: Which would be which area of the vehicle — the right or the left — in real life, not on this video?
MR. BUKHENIK: In real life, it would be the right rear portion of the vehicle, the tail light area, that quarter panel, correct. It appeared that someone just seemed to appear out of nowhere from the rear of the vehicle just now, due to the triggering of the motion.
MR. JACKSON: I asked you — did it appear that someone just appeared out of nowhere from the back of there?
MR. BUKHENIK: That's what the footage represents, yes.
MR. JACKSON: Did you see that the person walking away from the vehicle — that you earlier on Wednesday identified as Trooper Proctor — appear to have a notebook, black portfolio, in his hand?
MR. BUKHENIK: Yes, I did.
MR. JACKSON: And can you see from there — I'm going to ask you this basically knowing the answer — can you see from there the time of day on the lower left side as that person leaves the screen?
MR. BUKHENIK: No, I cannot.
MR. JACKSON: Would you disagree if I indicated to you that was 5:38 and 7 seconds in the evening?
MR. BUKHENIK: I would have to see it for myself. I cannot agree with you based on your statement.
MR. JACKSON: Do you want me to approach briefly?
JUDGE CANNONE: Sure. You are unmuted.
MR. JACKSON: All right, so Sergeant, we're going to ask you to go take a look at that, okay? Thank you, your honor.
JUDGE CANNONE: And please don't speak until you're back in the witness stand. All right, Mr. Jackson. Thank you.
MR. JACKSON: Thank you. Sergeant, did you have an opportunity to look at the time of day at the point that the video is paused right now?
MR. BUKHENIK: Yes, I did.
MR. JACKSON: What is that time of day?
MR. BUKHENIK: 5:38:07 — 5:38 and 7 seconds.
MR. JACKSON: Correct. And remind me, about how far a drive is this location at Canton PD from 34 Fairview, with no traffic, no adverse weather and road conditions?
MR. BUKHENIK: Several minutes — four, maybe five minutes, depending which route you take.
MR. JACKSON: I have a flash drive that I'd like to have marked. Is this a different flash drive than we had on Friday?
MR. BUKHENIK: It is.
MR. JACKSON: And I can explain it at sidebar, if the Court
JUDGE CANNONE: Wishes. All right. Are you just marking it, or do you intend to show it?
MR. JACKSON: I intend to show it with the Court's permission.
PARENTHETICAL: [Sidebar concluded; recess taken]
JUDGE CANNONE: All right, so we'll mark it for identification, and then I do need to see you.
MR. JACKSON: Yes. Thank you.
JUDGE CANNONE: I'm going to take a two-minute recess.
COURT OFFICER: All rise for the court, please. Be seated.
PARENTHETICAL: [recess]
JUDGE CANNONE: Does counsel need to see me, or are we all set?
MR. JACKSON: I think we're all set.
JUDGE CANNONE: We are. Okay. Go right ahead, Mr. Jackson.
MR. JACKSON: Thank you, your honor. As a matter of housekeeping, I would ask for the admission of the last item that was marked for identification.
JUDGE CANNONE: [Exhibit number unclear.] All right, so that will now be — what, Madam court reporter? Thank you.
MR. JACKSON: And with the Court's permission, I'd ask to display that video.
JUDGE CANNONE: Yours.
MR. JACKSON: Okay. If you could move that to a runtime of 1:17 and go ahead and pause that. Sergeant, do you recognize what's depicted in what's just been marked as Exhibit 542?
MR. BUKHENIK: I do.
MR. JACKSON: How do you recognize that?
MR. BUKHENIK: It's an inversion of the video provided from Canton PD's sallyport.
MR. JACKSON: And that inversion corrects the perspective — would you agree with that?
MR. BUKHENIK: I would.
MR. JACKSON: Okay. So now we're looking at — we've always been looking at it, but it's clear that we're looking at the driver's side of the vehicle. Correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And everything is properly oriented — is that right?
MR. BUKHENIK: It's an accurate depiction of what is taking place, meaning right is right and left is left in this video. The vehicle came from the right into the left; the driver's side is visible and is closest to the camera.
MR. JACKSON: Thank you. You saw the person that was toward the back of the vehicle that you earlier on Wednesday identified as Trooper Proctor moving toward the right — I'm sorry — the passenger side tail light area in this video. Correct?
MR. BUKHENIK: I observed the person walking that way.
MR. JACKSON: And you see the person from the tail light area moving out of frame just now. Correct?
MR. BUKHENIK: I did, yes.
MR. JACKSON: That person had that black portfolio in his hand.
MR. BUKHENIK: That's correct.
MR. JACKSON: I'd like to ask if you wouldn't mind moving the cursor back to the beginning — before the SUV was actually in the sallyport. You can pause that. Do you see what's depicted in the video now, at runtime at the beginning of the video?
MR. BUKHENIK: I see the still frame. I mean, what I'm observing is the still frame.
MR. JACKSON: Okay, fair enough. Fair enough. Can you see from where you are, sir — can you see the chyron at the bottom of the video in blue indicating the date stamp and time stamp? You see that from where you are?
MR. BUKHENIK: I see the blue color. I don't know what exactly it is.
MR. JACKSON: Are your eyes good enough to see that that is completely inverted?
MR. BUKHENIK: They are not — they are not good enough.
MR. JACKSON: That was a good answer to a bad question on my part. With the Court's permission, would it be possible for the Sergeant to approach the screen and take a look at that time stamp?
JUDGE CANNONE: You may do that, Sergeant, please.
MR. BUKHENIK: Yes, your honor.
JUDGE CANNONE: Were you able to — may I inquire?
MR. JACKSON: Yes.
JUDGE CANNONE: Were you able to see that time stamp?
MR. BUKHENIK: Yes, I was.
MR. JACKSON: Sergeant, did that time stamp appear to be inverted?
MR. BUKHENIK: The blue writing appears to be backwards.
MR. JACKSON: So in this version of the video, which has been inverted from the version shown by the Commonwealth, the time stamp also was inverted. Correct?
MR. BUKHENIK: What appears on the screen is inverted.
MR. JACKSON: Thank you. With the Court's permission, I'd like to zoom in on a portion of the middle of the video.
JUDGE CANNONE: Okay.
MR. JACKSON: So I want to direct your attention to the area of the video right above the hand truck. Do you see that area?
MR. BUKHENIK: I do.
MR. JACKSON: You see that white object just above the snow line?
MR. BUKHENIK: I see something there. I do not know what it is — if it's an object or it's more snow.
MR. JACKSON: Can you tell if that is a dirty white rag?
MR. BUKHENIK: I cannot tell what it is.
MR. JACKSON: Thank you. We can take that down. We've seen a corrected version of that sallyport video from that camera. There's also another camera on the opposite side of the sallyport, isn't there?
MR. BUKHENIK: There is.
MR. JACKSON: And that one — for lack of a better phrase — that one came out pretty grainy. Would you agree?
MR. BUKHENIK: Yes, it's not perfect quality.
MR. JACKSON: The other view would show — given the fact that it's on the opposite side of the wall from this video — that would actually show the right rear portion of the SUV as it was parked in that sallyport. Would it not?
MR. BUKHENIK: Yes, it would.
MR. JACKSON: Let's take a look, with the Court's permission. This has already been marked as Exhibit 446 — I believe it was introduced last week. Display that. Yes. Thank you. I know it's very hard to see, Sergeant, but could you tell me — as the video is paused right here at the beginning time stamp — can you see the outline of the antique police car?
MR. BUKHENIK: I can make that out, yes.
MR. JACKSON: And it appears that there's no vehicle in the foreground on this side of that antique police car. Correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: You also can see that this video is in fact not inverted — it's the correct orientation.
MR. BUKHENIK: That's correct.
MR. JACKSON: And obviously it's pretty lacking in quality, but you can make out the fact that there is an outline of a vehicle there. Correct?
MR. BUKHENIK: Correct.
MR. JACKSON: May I approach the screen briefly?
JUDGE CANNONE: Yes.
MR. JACKSON: If we could, with the Court's permission, begin playing at this time — about, this is about 5:07 and 10 seconds, that's the time of day — we can play for about a little less than a minute.
JUDGE CANNONE: Okay.
MR. JACKSON: Sergeant, did you see what was depicted on the video that just ran from 5:07 and a few seconds until it was just paused?
MR. BUKHENIK: I did watch the video.
MR. JACKSON: And how much time would you estimate elapsed if we just watched that video in real time?
MR. BUKHENIK: Fifteen seconds, maybe.
MR. JACKSON: Okay. And do you see something — you see something in the foreground that just sort of appeared there, next to that antique police car?
MR. BUKHENIK: It appears that the SUV has now pulled into the sallyport and there's an individual standing behind the SUV.
MR. JACKSON: Do you see what the time of day is on that timer?
MR. BUKHENIK: I do not.
MR. JACKSON: And you see that it's at 5:50 and 46 seconds?
MR. BUKHENIK: I cannot.
MR. JACKSON: Unfortunately I cannot zoom on this, your honor. With the Court's permission, Sergeant, make one more trip to the screen to give us the exact time that this is paused. This is the last time, Sergeant — would you please? Thank you. What is the time stamp where the video is paused?
MR. BUKHENIK: 5:50:46 — 5:50 and 46 p.m.
MR. JACKSON: Correct. So it appears that this video in about 15 seconds jumps 42 minutes to the 5:50 mark. Correct?
MR. BUKHENIK: I don't know how much it jumps.
MR. JACKSON: Well, from 5:08 approximately to 5:50 approximately — how much time is that approximately?
MR. BUKHENIK: Forty-eight — 42 minutes.
MR. JACKSON: Right. Excuse me — 42. That's okay. And Ms. Read's vehicle, which shows the right rear tail light portion, just appears. Correct? At 5:50, there's a vehicle that appears, there appears to be an individual standing behind the vehicle — it's not just a tail light that appears. But, Sergeant, the exact time that would show what Trooper Proctor was doing at the right rear tail light — that is missing.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: The exact time that would show what the person — who you identified on Wednesday as being Trooper Proctor — that video is not there. Correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: This video, Sergeant — you will agree — if that 42-minute period existed, that would have shown — that would have been the only video that would establish the actual condition of the tail light the moment the SUV arrived in police custody in that sallyport. Correct?
JUDGE CANNONE: Jackson, you can ask that differently.
MR. JACKSON: Is there any other video other than this one that would show the exact condition of that tail light as it pulled into the sallyport? Is this the only one from that location?
MR. BUKHENIK: That is the video that captures that time frame.
MR. JACKSON: And that's also the video that captures that area of the car. Correct? The right rear portion of the car. Correct?
MR. BUKHENIK: Correct.
MR. JACKSON: And that 42 minutes — from when the car arrived until 5:50 in the evening — that portion is missing. Correct?
MR. BUKHENIK: It's not missing, it's just not recorded. It's not there.
MR. JACKSON: Sergeant, [unintelligible] — I'm not splitting hairs with you. It's not there, it's gone. Correct?
MR. BUKHENIK: It's not — it's not on the screen now.
MR. JACKSON: It's not anywhere, is it?
MR. BUKHENIK: I do not know.
MR. JACKSON: That's all I have.
JUDGE CANNONE: Okay.
MR. LALLY: Thank you, your honor. Good morning, Sergeant.
MR. BUKHENIK: Good morning, sir.
MR. LALLY: So how this video was played before the jury on Wednesday — during your direct testimony — the condition of that video, the view of that video — that's how you received it from the Canton Police. Correct?
MR. BUKHENIK: That's correct.
MR. LALLY: But nothing was done to alter it, change it in any way, shape, or form from when you received it to when it was played before the —
JUDGE CANNONE: Sustained. You can't lead, Mr. Lally.
MR. LALLY: What if anything was — what if anything was done to alter, change that video from when you received it to the time that it was played for the jury?
JUDGE CANNONE: Ask it differently one more time. As far as the condition when you —
MR. LALLY: — received it and the condition when it was played for the jury, what was different?
MR. BUKHENIK: There was no manipulation, alteration of the video between —
JUDGE CANNONE: I'll allow the answer.
MR. BUKHENIK: — between when we received it from Canton Police Department, when I played it, and when it was played for you now.
MR. LALLY: As far as the cameras — the cameras are motion activated. Correct?
MR. BUKHENIK: That's correct.
MR. LALLY: And as far as the skipping that you observed at various points of the video, was that something that occurred once or more than once?
MR. BUKHENIK: More than once. Repeatedly.
MR. LALLY: And was it one specific portion of the video — and by that I mean, was it only at the beginning, or only in the middle, or only — — at the end, or was it sort of throughout?
MR. BUKHENIK: It's consistently happening when there's a lack of motion. The video does not record because it's not triggered to record.
MR. LALLY: Now from the video, at least as far as you've seen — the one that you were shown on Wednesday and the one that you were shown today, or the portions that you were shown today — what if any difference did you note between the content of what's contained in the video?
PARENTHETICAL: [Video plays]
MR. BUKHENIK: The content of the video is an accurate depiction of what's taking place. The only difference that I noticed today is that the version played was actually inverted from the original version that — — I received, and which was produced.
MR. LALLY: With the Court's permission, I would ask that the entirety of that 5 minutes and 51 seconds of video be played for the jury.
JUDGE CANNONE: Okay.
MR. LALLY: Pause there. That area just played before the jury — that is when the vehicle was brought in by the tow truck driver, from the flatbed, from the driveway, into the sallyport. Correct?
MR. BUKHENIK: That's correct.
MR. LALLY: Sergeant, I'm going to direct your attention to the person that just opened the driver's side door — that's the tow truck driver. Is that correct?
MR. BUKHENIK: That's correct.
MR. LALLY: I'm just asking you to take a look at the door, and in particular the snow on the door when he closes that. If you could — pause just for one moment. Now, Sergeant, if I could direct your attention back to the Ring video — I think it was video 153 from Exhibit 6 — — and you were shown that video on cross-examination and asked about any movement that you saw on the driver's side rear tire, things of that nature. Do you recall that?
MR. BUKHENIK: I do.
MR. LALLY: And you recall that portion of the video when it's alleged that Miss Read's vehicle came close to or made contact with Mr. O'Keefe's vehicle in the driveway? At that point, did you observe any snow coming off of Mr. O'Keefe's car when they came close to each other?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. BUKHENIK: I don't remember exactly if there was snow coming off the vehicle. There was snow falling, and that was captured by the Ring video. I don't recall if any snow came off the — — vehicle. [Video concludes]
MR. LALLY: Thank you. Mr. Officer, we can have the lights back up now. Sergeant, that video starts at approximately 5:30 p.m. on January 29th. Correct?
MR. BUKHENIK: Correct.
MR. LALLY: Is that before or after the Ring video 153 from Exhibit 6, at 5:07 a.m. in the morning at Mr. O'Keefe's house, when you can see the defendant's —
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. Ask the question.
MR. LALLY: 5:30 p.m. on January 29th — is that before or after 5:07 a.m., when you observe the defendant's vehicle on the Ring video at Mr. O'Keefe's house?
MR. BUKHENIK: That is after.
MR. LALLY: And is that before or after you observed on the Ring video the defendant, Miss Roberts, and Miss McCabe — — driving the defendant's vehicle and parking it in the driveway of Mr. O'Keefe's house?
MR. BUKHENIK: It's after.
MR. LALLY: And is it before or after about 8:22 in the morning, at some point, when a Canton cruiser parked in the driveway behind the defendant's vehicle?
MR. BUKHENIK: It's after.
MR. LALLY: And is it before or after about 12:30 p.m. or so, when the defendant and her father and her brother — from the videos from Exhibit 6, the Ring videos, [unintelligible] — are parked in and around the defendant's vehicle, and then leave with the defendant's vehicle to go to Dighton?
MR. BUKHENIK: It's after.
MR. LALLY: And is it before or after the video that you testified about on Wednesday, in regard to the surveillance video from the defendant's father's house in Dighton, when that vehicle is being loaded onto a truck and you can see the tail light there?
MR. BUKHENIK: It's after.
MR. LALLY: Now, again — you had a conversation, or an interview, with the defendant on the afternoon of January 29th, when you were [unintelligible]. Correct?
PARENTHETICAL: [Sidebar.]
JUDGE CANNONE: Remote audio: You are unmuted.
MR. BUKHENIK: That's correct.
MR. LALLY: And during the course of that interview, she made statements about her broken tail light and when that occurred. Correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Do you want instruction, or do you want to come see me at sidebar?
MR. LALLY: Now, Sergeant, between the version of the video that you and the jury witnessed on Wednesday, and the version that you just witnessed the entirety of right now — again, what if any difference, as far as the depiction of people or places, between those two versions of the video?
MR. BUKHENIK: Outside of it being a mirror image of itself, it accurately depicts any activity or action in the sallyport.
MR. LALLY: And at any point in time that you were in the sallyport area of the Canton Police Department garage, did you or Trooper Proctor ever go near, touch, or manipulate the rear passenger side tail light area, or the rear passenger side quarter panel of the defendant's vehicle?
MR. BUKHENIK: We absolutely did not.
MR. LALLY: Now, if I could turn you back to some questions you were asked on cross-examination about something that was reported to the Chief Medical Examiner's office. Do you recall that?
MR. BUKHENIK: I do recall that.
MR. LALLY: And some questions about statements that you had made to the OCME, approximately 10:41 a.m. on January 29th. You recall that?
MR. BUKHENIK: I do recall that.
MR. LALLY: And you were asked some questions about reporting it as a possible domestic assault. Correct?
MR. BUKHENIK: That is correct.
MR. LALLY: And can you explain to the jury what led to that statement, as far as what you knew at that time, and —
MR. BUKHENIK: The Massachusetts General Law directs us — just as it gives the District Attorney's power to and authority over all death investigations — the following section, section four of that chapter. Excuse me, the following section from section four — section five of that chapter — directs all state medical and police entities to work in coordination with the medical examiner's office. By law, we're supposed to work together on the medical-legal investigations that the medical examiner's office conducts. We conduct a criminal portion of the investigation; they conduct a medical portion of the investigation. Thus, I contacted the medical examiner's office and advised them of what we had learned at the time. Up to that point, we had learned that the defendant stated that she hit him.
MR. BUKHENIK: We had collected — meaning the Canton Police Department had collected — a broken glass. So based on the physical evidence and the statements made by the defendant to the first responders at the scene, at that point in time, I had communicated those facts to the medical examiner's office, so that they would document it, but also be prepared to investigate the case with the most up-to-date investigative information — — available.
MR. LALLY: Now, at that time that you made that statement to the representative from the Chief Medical Examiner's office, had you been to Good Samaritan Hospital and seen Mr. O'Keefe at that point?
MR. BUKHENIK: I have not.
MR. LALLY: And had you seen any of the injuries that Mr. O'Keefe had sustained, prior to making that statement to the medical examiner?
MR. BUKHENIK: I had not.
MR. LALLY: Now, as far as the information that you received — you mentioned first responders indicating that the defendant had stated, "I hit him" — who was the first responder that provided that information?
MR. BUKHENIK: Canton Police, Sergeant Goode.
MR. LALLY: In addition to that, did you or Trooper Proctor speak with any of the Canton —
MR. BUKHENIK: Fire personnel? Yes, we did.
MR. LALLY: And who did he speak with?
MR. BUKHENIK: I believe it was firefighter Flatley.
MR. LALLY: So firefighter Flatley, is that correct?
MR. BUKHENIK: That's correct.
MR. LALLY: Now, after going to Good Samaritan Hospital and viewing Mr. O'Keefe's injuries, as far as what you had earlier reported to the medical examiner, what if anything changed based on those observations as far as your opinion as to what it transpired?
MR. BUKHENIK: Based on what I learned from observing the injuries, I could tell that the glass—
JUDGE CANNONE: I'm going to allow it. You can move to strike it, but I'm going to allow it.
MR. BUKHENIK: I could tell that the glass was most likely not the object — the weapon — which was used to cause the injury to the back of Mr. O'Keefe's head.
MR. LALLY: Thank you, sir. A moment?
JUDGE CANNONE: Yes.
MR. LALLY: Thank you, sir. I have no further questions.
JUDGE CANNONE: Any recross?
MR. JACKSON: Very briefly.
JUDGE CANNONE: Okay.
MR. JACKSON: In your report to the OCME, you said there was glass to the face, not to the back of the head. Correct?
MR. BUKHENIK: I'm not sure how they wrote it down, but I would need to be refreshed on my memory.
MR. JACKSON: Okay, fair enough. Approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Does that refresh your recollection?
MR. BUKHENIK: Yes, it does.
MR. JACKSON: What did you say to — or what did you report to the OCME?
MR. BUKHENIK: That there was a possibility that the deceased was struck to the face with a glass.
MR. JACKSON: You also, with regard to the phrase "I hit him," or Sergeant Goode and/or Flatley telling you that she said — Miss Read said she hit him — when did Sergeant Goode tell you that?
MR. BUKHENIK: It would have been during our conversations at the police department.
MR. JACKSON: And when did EMT Flatley tell you that?
MR. BUKHENIK: He never told me that.
MR. JACKSON: So the only thing you were going on with regard to the phrase or the statement that you claim my client indicated — where my client indicated she hit him — is coming from Sergeant Goode?
MR. BUKHENIK: That information at that time was provided by the first responders from the scene, and Sergeant Goode then relayed that to you — correct, at some point.
MR. JACKSON: Yes. Is there a single report memorializing that Sergeant Goode reported to you that morning, before 10:41 a.m. — before 10:41 a.m. — that my client made the statement that she hit him?
MR. BUKHENIK: I don't believe so.
MR. JACKSON: I want to shift gears real quick to the video. Couple of quick questions about that. When did you — and I'm talking about the higher-quality video, the one that was inverted — when did you receive that video? What day?
MR. BUKHENIK: I'm not sure. It was at some point in either late April or early May, after we had started this trial.
JUDGE CANNONE: Jackson, do you know?
MR. JACKSON: I did not, Your Honor.
JUDGE CANNONE: After mid-April, correct?
MR. BUKHENIK: I believe so. I'm strictly speculating.
MR. JACKSON: Who asked you to retrieve that video?
MR. BUKHENIK: I did not retrieve that video.
MR. JACKSON: I'm sorry, that was a presumptuous question. At what point were you asked to secure the video, or were you ever asked to secure the video?
MR. BUKHENIK: That video was never secured by me. I was not asked to secure it. I was just asked to review it.
MR. JACKSON: Okay. So who did secure the video, to your knowledge?
MR. BUKHENIK: I do not know.
MR. JACKSON: Are you aware that it was — well, let me ask you a couple of different questions then based on that. You've already testified that you knew that the Canton Police Department was recused from any investigation concerning this case. Correct?
MR. BUKHENIK: At one point we learned that the Canton Police Department — a decision was made way above my level, and I was advised by Detective Lieutenant Tully that Canton Police had recused themselves from the investigation as far as interviews go.
MR. JACKSON: And you knew that that recusal was because of a connection between the Canton Police Department and the Albert family. Correct?
JUDGE CANNONE: Objection. Sustained.
MR. JACKSON: Did you know or were you informed that the recusal was based on the connection between the Canton Police Department and the Albert family?
MR. LALLY: Objection.
JUDGE CANNONE: So it's sustained for the same reason. I sustain the same objection. At sidebar, Mr. Jackson.
MR. JACKSON: Last question. Who provided the video?
MR. BUKHENIK: I do not know.
MR. JACKSON: Canton Police Department — wasn't it? You asked who — that's an entity. Okay. What entity provided the video?
MR. BUKHENIK: It came from the Canton Police Department.
MR. JACKSON: Thank you. That's all I have.
JUDGE CANNONE: All right, Sergeant, you are all set. Thank you.
MR. BUKHENIK: Thank you, Your Honor.
JUDGE CANNONE: Your next witness, Mr. Lally?
MR. LALLY: Yes, Your Honor. Call Officer Nicholas Barros to the stand.
JUDGE CANNONE: Okay.