Commonwealth v. Read — Trial ArchiveYuri Bukhenik — Cross/Redirect/Recross
713 linesWhereupon, YURIY BUKHENIK, Resuming having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: Okay, Mr. Jackson.
MR. JACKSON: Thank you. CONTINUED CROSS-EXAMINATION
BY MR. JACKSON:
MR. JACKSON: When we left off on Thursday, we were discussing the sally port 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, he did.
MR. JACKSON: 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 that the person who was slipping actually was the tow driver, not you, correct?
MR. BUKHENIK: That's what it appeared, yes.
MR. JACKSON: I'd like to take a quick look at that with the Court's permission at 4:46. May I publish that?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: This is 446. It's the same video that you were shown by Mr. Lally where at runtime about 5:37:05 p.m. that the -- I'm sorry. I said "runtime." I meant time of day. The time of day would be most easily seen right down here, pretty small from where you're at. If you can't see that, please let me know.
MR. BUKHENIK: I do not see that, no.
MR. JACKSON: Okay.
MR. JACKSON: Your Honor, I'll hold off on that question, and I may ask the Court for relief in just a moment. If we can play this for just a question and then I'll ask you, Mr. Bates, if you can pause it.
(Whereupon, the video is played.)
MR. JACKSON: Go ahead and pause there.
(Whereupon, the video is paused.)
BY MR. JACKSON:
MR. JACKSON: Sergeant, this is the basic -- 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. 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, screen right, mistakenly, understandably, mistakenly as you? Do you remember that?
MR. BUKHENIK: I remember indicating where the individuals would be, yes.
MR. JACKSON: Do you have the green laser pointer with you?
MR. BUKHENIK: Could you point at the location where you see Trooper Proctor? A 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 (indicating).
MR. JACKSON: You're indicating toward the rear of the SUV?
MR. BUKHENIK: Correct.
MR. JACKSON: On Wednesday -- I just want to draw your attention back to your testimony on Wednesday.
MR. BUKHENIK: Yes.
MR. JACKSON: You used the laser pointer and pointed at two different individuals, the person toward the back, and you identified him as Mr. Proctor, as Trooper, correct, on Wednesday?
MR. BUKHENIK: I indicated that Trooper Proctor and myself would be in the shot at the rear of the vehicle. And then I indicated that I am wearing an olive drab baseball hat and Trooper Proctor is wearing a winter- style knit black hat.
MR. JACKSON: Is it true that on Wednesday what -- the question you were asked from Mr. Lally is (as read) "Ms. Gilman, if you can just pause there for a moment as the sergeant is 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, no.
MR. JACKSON: Do you remember Mr. Lally saying (as read), "Sergeant Bukhenik, with reference to any of the individuals you see in this video, do you recognize any of those individuals," and you responding, "Um, I can recognize Trooper Proctor and myself." And you used the green laser pointer in doing so.
MR. BUKHENIK: Yes, I did.
MR. JACKSON: And that was on this area. It may not be to the frame but this is where the video was paused when you made that identification, 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?
MR. BUKHENIK: Again, I cannot tell you which individual. There are multiple individuals there. I do not know at this point in time 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: All right. So you have to move along, please.
BY MR. JACKSON:
MR. JACKSON: Then why did -- 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?
MR. BUKHENIK: During the frozen frame, I could tell there were two individuals back there, and I was at one point in time in that location with Trooper Proctor.
MR. JACKSON: Does that appear to be Trooper Proctor in the back of the car?
MR. BUKHENIK: From where the video is frozen right now, I cannot tell.
MR. JACKSON: So you're changing your testimony from Wednesday.
MR. LALLY: Objection.
JUDGE CANNONE: Are you changing your testimony?
MR. BUKHENIK: I am not changing my testimony. No.
JUDGE CANNONE: Next question, Mr. Jackson.
BY MR. JACKSON:
MR. JACKSON: 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 sally port that night, correct?
MR. BUKHENIK: I indicated the video is true and accurate to the location.
MR. JACKSON: And 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 taillight at any time, and your answer was, never, correct?
MR. JACKSON: That's correct.
MR. JACKSON: While you testified, this is the video that was displayed for the jurors, correct? In other words, 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 taillight of the SUV is the one facing the jurors, if you will, facing the viewer, right, from appearances if you didn't know anything different?
MR. BUKHENIK: 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 taillight is the taillight that's facing the jurors, facing the viewer, toward the rear of the truck, correct?
MR. BUKHENIK: As it is frozen, 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 is 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 and then came back on Thursday and 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: I did not, no.
MR. JACKSON: And then it was my turn to ask you questions. Do 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 are looking at it is not a true and accurate depiction of what you viewed in that sally port that night?
MR. BUKHENIK: I would not agree with you, no.
MR. JACKSON: You believe that what the jurors are seeing right here is true and accurate surveillance footage of the sally port that night?
MR. BUKHENIK: Yes. It's just mirrored.
MR. JACKSON: Which means what's left is right and what's right is left, correct?
MR. BUKHENIK: Correct. If the jurors were actually standing where the camera is recording, which it's recording all 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 is just a mirror image.
MR. JACKSON: So it's not accurate, is it?
MR. BUKHENIK: It's an accurate depiction of what is taking place.
MR. JACKSON: Sergeant Bukhenik, if I were to ask you -- let me give you a hypothetical: Let's say you were investigating a circumstance in which a person was -- 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 those 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, no, 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.
BY MR. JACKSON:
MR. JACKSON: Do you agree with me that an inverted video is not accurate? It's inverted, by definition, right?
MR. BUKHENIK: It is an accurate depiction of the events taking place.
MR. JACKSON: You 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, Mr. Bates, if you could, with the Court's permission, can you pull the cursor back to the beginning of the time of day for this video and pause it there.
BY MR. JACKSON:
MR. JACKSON: Can you see -- and this is not an eye exam. Can you see the timestamp on the lower left-hand side?
MR. BUKHENIK: No, I cannot.
MR. JACKSON: Your Honor, with the Court's permission --
JUDGE CANNONE: I'd like to see you at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: I did tell you before no demonstrations without me knowing about it. "With the Court's permission, I'm going to do this" -- say "yes" because you didn't tell me what you were doing until after he did it. Be careful of those things, Mr. Jackson.
MR. JACKSON: Well, when I think of it, I will obviously let the Court know. I wouldn't want to --
JUDGE CANNONE: No. Something with the time. What do you want to do?
MR. JACKSON: I thought he might be able to see it.
JUDGE CANNONE: Do you have a still?
MR. JACKSON: I don't have a still. But he could step off the witness stand and take a look at two times, the beginning time of day and the end time.
JUDGE CANNONE: What are the times?
MR. JACKSON: 5:30 and 5:48.
JUDGE CANNONE: Are you in agreement that the times are 5:30 and 5:48?
MR. LALLY: As a beginning time? I'll take counsel's word for it.
MR. JACKSON: Can we just stipulate?
JUDGE CANNONE: Well, that's what I'm asking. Do you agree?
MR. LALLY: I think it's roughly what it is, and I can just say the runtime of the video was five minutes and 51 seconds.
MR. JACKSON: Those are those things. That's what I need out of this witness.
JUDGE CANNONE: All right. So we don't need the times. We can figure out the times. But, the runtime, you agree with this, 5:51?
MR. LALLY: Uh-huh.
JUDGE CANNONE: They'll have it. You'll have it and you can argue it.
MR. JACKSON: I realize that.
JUDGE CANNONE: You don't need to get it from the witness.
MR. JACKSON: I do need to get it from the witness. At the time -- I need him to acknowledge that this is not a complete video, that there are times missing.
JUDGE CANNONE: It's motion activated. Is that why the times --
MR. JACKSON: I don't know.
JUDGE CANNONE: Was that testimony on this or was that -- that was testimony on this, right?
MR. LALLY: Yes. Yes.
JUDGE CANNONE: I know I heard testimony on motion activated.
MR. JACKSON: Your Honor, this is my cross- examination.
JUDGE CANNONE: Right. I'm not going to let him get up and look at it. You've got to stipulate --
MR. JACKSON: I'm happy to do that.
JUDGE CANNONE: -- that it is five minutes and 51 seconds.
MR. JACKSON: Five minutes --
JUDGE CANNONE: What did you say it was?
MR. LALLY: I believe it's five minutes and 51 seconds of runtime.
MR. JACKSON: 5:51, 5:52. I'll stipulate to that. And, also, if I could just get a stipulation for the beginning runtime -- I'm sorry -- the beginning time?
JUDGE CANNONE: Oh, you're saying the time is longer than the 5:51?
MR. JACKSON: It's 17 minutes. It should be 17 minutes long.
MR. LALLY: It is. It's motion activated.
JUDGE CANNONE: So do you agree that it's 17 minutes long?
MR. LALLY: Roughly, yeah.
MR. JACKSON: It should be. It's not, but it should be.
JUDGE CANNONE: Are you satisfied with that time?
MR. LALLY: 5:30:32.
MR. JACKSON: 5:30 and then whatever. And then it goes to 5:48 and whatever. I've got the times in my notes, the exact times.
JUDGE CANNONE: You don't have to get it from the witness if you get it from Mr. Lally, right?
MR. JACKSON: Right. If we could have one or two questions of the witness based on that.
MR. LALLY: That sounds about right. I don't know the end time offhand.
JUDGE CANNONE: Why don't you have him just put it down, put it at the end time. You can look at the end time and then we'll move on.
MR. JACKSON: That's exactly what I was --
JUDGE CANNONE: You're not going to get it from the witness and I'm not going to make him come up and do a demonstration.
MR. JACKSON: It's not even a demonstration.
JUDGE CANNONE: I'm not going to have him --
MR. JACKSON: If we had monitors on the witness stand, we wouldn't have to --
JUDGE CANNONE: And, if you had a still shot, you could show him. So okay. So you've agreed it's 5:51, right?
MR. LALLY: Yes.
JUDGE CANNONE: You both tell me what your stipulation is.
MR. JACKSON: That the beginning time of day is 5:51, and I'll fill in the second --
JUDGE CANNONE: No. The beginning time is 5:30.
MR. JACKSON: I'm sorry. 5:30, and a number of seconds. It's in my notes.
JUDGE CANNONE: Okay.
MR. JACKSON: The end time of day is 5:48 and the number of seconds, and I'll fill in the blank.
JUDGE CANNONE: Okay.
MR. JACKSON: But the total run time is five minutes and 51 seconds.
JUDGE CANNONE: Do you agree with all that, Mr. Lally?
MS. MCLAUGHLIN: The end time is 5:30:23, to be precise.
JUDGE CANNONE: And time ends -- the end time is what?
MR. JACKSON: The end time is 5:48, and the number of seconds is in my notes.
JUDGE CANNONE: Okay.
MR. JACKSON: That's five minutes and 51 seconds total runtime.
JUDGE CANNONE: So do you want me to tell the jury this?
MR. JACKSON: No. I'll do it.
JUDGE CANNONE: Or do you want to tell your witness?
MR. JACKSON: I'm just going to ask for a stipulation first. Mr. Lally -- the Commonwealth stipulates to these two times --
JUDGE CANNONE: So that's typically not how it's done. I tell the jury that we have the following stipulation, and then you can say what the stipulation is. You cannot question the prosecutor during the course of this trial.
MR. JACKSON: I'm not questioning him.
JUDGE CANNONE: No. I'm just telling you --
MR. JACKSON: I'm asking for the stipulation.
JUDGE CANNONE: Please. Let me talk.
MR. JACKSON: I have let you talk. You are not letting me make a record.
JUDGE CANNONE: Oh, you've made a record. The prosecutor is agreeing to this. You can't openly say in court in front of the jury, Mr. Lally, will you stipulate to this. That's all I was saying to you.
MR. JACKSON: Understood. Understood.
MS. MCLAUGHLIN: Your Honor, I do have the end time. It's 5:48:15 seconds.
JUDGE CANNONE: Okay. I am going to tell them that the parties stipulate that the video begins at 5:30:23 seconds.
MS. MCLAUGHLIN: Yes, Your Honor.
JUDGE CANNONE: 5:30 p.m. and 23 seconds, and it ends at 5:48:15. All right. And that the total runtime is five minutes and 51 seconds.
MR. JACKSON: Correct. Thank you. That's all I need.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Jurors, sometimes lawyers have what we call stipulations. Rather than prolonging either the 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 5:30:23, 5:30 p.m. and 23 seconds, and it ends at 5:48:15. And the total runtime of the video is 5:51 seconds. All right. Your questions, Mr. Jackson.
JUDGE CANNONE: Thank you, Your Honor.
BY MR. JACKSON:
MR. JACKSON: 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 50 seconds or so?
MR. BUKHENIK: In realtime, yes.
MR. JACKSON: In realtime. The actual time of this video, the runtime of this video, however, is only five minutes and 51 seconds, less than six 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. It's 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 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 wasn't recorded, do you?
MR. LALLY: Objection.
JUDGE CANNONE: I'll let him answer it.
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.
BY MR. JACKSON:
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 seemed to appear or aberrate out of nowhere?
MR. BUKHENIK: It's not a smooth recording of the events. When the motion triggers the recording, the video appears as if a person appeared in the video.
MR. JACKSON: An aberration?
MR. BUKHENIK: 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 the video, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained. Ask that differently.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: 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, no.
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 can tell you that the video is triggered by motion to record.
MR. JACKSON: Well, 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 percent? Was it 99 percent? 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 aberrate out of nowhere?
MR. BUKHENIK: It's not missing. It just was not recorded.
MR. JACKSON: Let's move to I believe it was 5:37 and a few seconds.
MR. JACKSON: Okay. With the Court's permission, could we play about less than a minute?
JUDGE CANNONE: Yes.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
BY MR. JACKSON:
MR. JACKSON: Do 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.
MR. JACKSON: Toward the taillight area?
MR. BUKHENIK: That quarter panel, correct.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Did it appear that someone just seemed to appear out of nowhere toward the rear of the vehicle just now?
MR. BUKHENIK: Due to the triggering of the motion --
MR. JACKSON: I didn't ask you why. I asked you if. Did it appear as if someone just appeared out of nowhere in the back of the vehicle?
MR. BUKHENIK: That's what the footage represents, yes.
MR. JACKSON: Okay.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: Did you see that the person walking away from the vehicle that you earlier on Wednesday identified as Trooper Proctor appeared to have a notebook, black portfolio in his hand?
MR. BUKHENIK: Yes, I did.
MR. JACKSON: And can you see from there -- and 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 seven 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: Your Honor, may we approach briefly?
JUDGE CANNONE: Sure.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So he said he'd want to see it. I'm going to let him see it. That's what you're asking, right?
MR. JACKSON: Out of respect for the Court's preference --
JUDGE CANNONE: No, and I appreciate that.
MR. JACKSON: I think a stipulation to that time is fine, just 5:30 --
JUDGE CANNONE: Or you can ask -- he said he'd have to see it. So do you want him to go see it?
MR. JACKSON: Sure.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: So, Sergeant, we are going to ask you to go take a look at that. Okay? And please don't speak until you are back at the witness stand.
(Witness complies.)
MR. JACKSON: May I?
JUDGE CANNONE: Mr. Jackson?
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: 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.
MR. JACKSON: 5:38 and seven seconds, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And remind me about how far of a drive in time is this location of Canton P.D. to 34 Fairview?
MR. BUKHENIK: With no traffic, no adverse weather or road conditions, several minutes. Four minutes maybe, five minutes, depending on which route you take.
MR. JACKSON: Your Honor, I have a flash drive that I'd like to have marked?
JUDGE CANNONE: Is it a different flash drive than what you had on Friday?
MR. JACKSON: It is. I can explain at the sidebar if the Court wishes.
JUDGE CANNONE: Are you just marking it or do you intend to show it?
MR. JACKSON: No. I intend to show it with the Court's permission.
JUDGE CANNONE: All right. So we'll mark it for identification and then I do need to see you.
(Whereupon, thumb drive with video was entered and marked Exhibit "YY" for Identification.)
COURT REPORTER: "YY" for Identification.
JUDGE CANNONE: Thank you.
MR. JACKSON: May we approach, please, Your Honor?
JUDGE CANNONE: Yes.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Have you seen it?
MR. LALLY: No.
MR. JACKSON: He has seen it. This is the same video. We sent it to him yesterday, the same video that we had on Friday. It is this video, inverted. When we received the original video from the share file from the Commonwealth, it was in an executable format, an exe format, which is weird. It should have been in just a video format. So this video has the proper time of day on it, 5:38 and whatever it is. But it's completely inverted. You can't see it. So it's exactly this video, just inverted. There's no difference whatsoever.
JUDGE CANNONE: You sent it to the Commonwealth yesterday?
MR. JACKSON: We did. Actually, Saturday.
JUDGE CANNONE: You haven't seen it?
MR. LALLY: I've seen as far as the video that was produced on Thursday. I took a quick look at this in the sense that it appeared to be the same video that was sent. That's what I thought was being sent, was just a formal copy of what --
JUDGE CANNONE: Oh, because you hadn't received it because I took it?
MR. LALLY: Ms. Gilman had burned a copy. So that is why I didn't really bother to look at something that appeared to be the same thing.
MR. JACKSON: And it is the same thing. It's exactly this video, just literally the mirror image.
JUDGE CANNONE: How is it different than what we had on Friday?
MR. JACKSON: The one on Friday -- I don't know. It may be the same, but there is an anomaly that occurred in one of the versions of the video that we saw that we received from --
JUDGE CANNONE: No, but I mean you said on Friday.
MR. JACKSON: That's what I'm explaining. I don't know because I don't have it.
JUDGE CANNONE: Hold on one second. Jurors, we are going to give you a 10-minute break.
(Whereupon, the jury is escorted from the courtroom for a brief recess and the sidebar conference continues.)
JUDGE CANNONE: I am prepared to allow in what was marked "YY" on Friday because the Commonwealth has seen it.
COURT CLERK: Your Honor, that was marked today. It was "XX."
JUDGE CANNONE: "XX," Thursday. Are you objecting to "XX" being --
MR. LALLY: No.
JUDGE CANNONE: So show Mr. Lally the other one and I'll come out and hear you.
MR. JACKSON: The only difference, I'll tell the Court, the only difference is the blue timestamp on the bottom says UTC minus 5 versus UTC minus 8.
JUDGE CANNONE: Well, so show him.
MR. JACKSON: Okay.
JUDGE CANNONE: Are there any other surprises, any other differences that we can deal with rather than -- we've been at sidebar a few times.
MR. JACKSON: The only other thing that I want to do is play the dark, grainy video which is in 446. I think that's already been played.
JUDGE CANNONE: It's already in evidence.
MR. JACKSON: That's it.
JUDGE CANNONE: I want to hear you on the Trooper Proctor motion that the Commonwealth wanted renewed for today, as well. What do you intend to do regarding the internal affairs --
MR. JACKSON: Nothing.
JUDGE CANNONE: Not mention it to -- at all?
MR. JACKSON: No. I'm not seeking the introduction of that at all.
JUDGE CANNONE: Okay.
MR. JACKSON: My cross-examination is going to be based on bias.
JUDGE CANNONE: Federal Grand Jury minutes?
MR. JACKSON: The Federal Grand Jury minutes. A lot of the information that came out in the Federal Grand Jury minutes will be reflected in my questioning of Trooper Proctor, excluding, completely excluding, anything having to do with the --
JUDGE CANNONE: Does that answer your question?
MR. LALLY: It does. The only other questions I have were twofold: Number one, as it pertains to bias, I certainly understand certain statements contained within the text to friends and family as well as other troopers fall into that category. I don't think that there is anything, being any text messages with any Canton police officers, that have anything to do with bias. So I'd raise that. Secondly, and I'm just going on sort of my understanding as far as protective orders are concerned that I don't believe any of the text messages or any of the items contained can be displayed on the screen. And I'm not saying counsel intended to do that. I just want to clarify that before.
JUDGE CANNONE: Are you stuck with that protective order, as well?
MR. JACKSON: No. I don't think so. No. We've redacted everything having to do with Tuey, you know, coming from the AUSA, all of it's been redacted. It's just the text messages are there, downloaded, their extraction from an iCloud account. So we've been told we can, inside the four corners of the courtroom we can use anything we want to.
JUDGE CANNONE: Okay.
MR. LALLY: And I'm not disputing that as far as using what you want to. I just don't know if that includes publishing it on a screen.
MR. JACKSON: We were not told that the use and publication to the jury is separated. The anticipation is you use it in the courtroom, how you use it in the courtroom, displayed or otherwise. There were no restrictions.
JUDGE CANNONE: Do you intend to introduce, have copies of it?
MR. JACKSON: I do.
JUDGE CANNONE: Okay.
MR. JACKSON: I'll mark each hard copy and in the same way that Mr. Lally has done.
JUDGE CANNONE: Show Mr. Lally what it is you intend to introduce.
MR. JACKSON: He's got everything. It's the text messages; group chats with friends; group chats with colleagues, the MSP colleagues, which we are well aware of.
JUDGE CANNONE: How about with Detective Albert? That's what you raised, right?
MR. LALLY: Detective Albert and Sergeant Goode.
MR. JACKSON: Sergeant Goode? I don't think I have anything with Sergeant Goode that I'm interested in. Sergeant Albert. I'm sorry. Detective Albert, yes. There will be a couple of text messages back and forth. We have redacted a portion about --
JUDGE CANNONE: Regarding -- because there is an argument objecting to Detective Albert. So show Mr. Lally what you intend to introduce.
MR. JACKSON: Of course. Sure.
JUDGE CANNONE: So this will be very quick. Just show Mr. Lally.
MR. JACKSON: Yes.
(Whereupon, the sidebar conference concluded and a recess was taken.)
(Court resumes.)
(Defendant present. Jury present.)
JUDGE CANNONE: Does counsel need to see me or are we all set?
MR. JACKSON: I think we are all set.
MR. LALLY: No, Your Honor.
JUDGE CANNONE: 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: It was "XX" or was it "YY"?
MR. JACKSON: "YY." I did the same thing. I think it's "XX."
JUDGE CANNONE: So that will now be what?
COURT REPORTER: No. 542, Your Honor.
(Whereupon, thumb drive with video was entered and marked Exhibit No. 542 in Evidence.)
MR. JACKSON: And, with the Court's permission, I'd ask to display that video to the jurors.
JUDGE CANNONE: Okay.
MR. JACKSON: Mr. Bates, if you could move that to a runtime of one minute and 17 seconds or thereabouts. And go ahead and pause that.
BY MR. JACKSON:
MR. JACKSON: Sergeant, do you recognize what is 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 P.D. sally port.
MR. JACKSON: It's actually -- and that inversion corrects the perspective. Would you agree with that?
MR. BUKHENIK: I would.
MR. JACKSON: Okay. So now we are looking at the -- well, what we've always been looking at but we are clearly looking at the driver's side of the vehicle, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And everything in it is properly oriented; is that right?
MR. BUKHENIK: It is an accurate depiction of what is taking place.
MR. JACKSON: Meaning right is right and left is left in this video?
MR. BUKHENIK: The vehicle came from the right and to the left. The driver's side is visible and is closest to the camera.
MR. JACKSON: Thank you, Sergeant.
MR. JACKSON: Let's go ahead and play this for just a few seconds, please.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: You say 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 -- yes, the passenger side taillight area in this video, correct?
MR. BUKHENIK: I observed a person walking that way.
MR. JACKSON: Let's go ahead and play it.
(Whereupon, the video is played.)
MR. JACKSON: Pause it.
(Whereupon, the video is paused.)
MR. JACKSON: And you see the person toward the taillight area moving out of frame just now, correct?
MR. BUKHENIK: I did, yes.
MR. JACKSON: And that person had that black portfolio in his hand?
MR. BUKHENIK: That's correct.
MR. JACKSON: I'd like to ask Mr. Bates if you wouldn't mind moving the curser back to the beginning before the SUV was actually in the sally port, and if you can pause that.
MR. JACKSON: Do you see what's depicted in the video now, the runtime at the beginning of the video?
MR. BUKHENIK: I see the still frame. I'm observing the still frame.
MR. JACKSON: Okay. That's fair enough. Can you see from where you are, sir, can you see the chyron at the bottom of the video in blue, indicating and the date stamp and the timestamp? Can 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're not.
MR. JACKSON: They're not inverted?
MR. BUKHENIK: They are not good enough.
MR. JACKSON: That was a good answer to a bad question on my part.
MR. JACKSON: With the Court's permission, would it be possible for the sergeant to approach the screen and take a look at that timestamp?
JUDGE CANNONE: Can you do that, Sergeant, please?
MR. BUKHENIK: Yes, Your Honor.
(Witness complies.)
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Were you able to see that timestamp?
MR. BUKHENIK: Yes, I was.
MR. JACKSON: Sergeant, did that timestamp 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 timestamp also was inverted, correct?
MR. BUKHENIK: What appears on the screen is inverted.
MR. JACKSON: Thank you.
MR. JACKSON: I'd like to zoom in, just with the Court's permission, on a portion of the middle of the video.
JUDGE CANNONE: You may.
BY MR. JACKSON:
MR. JACKSON: Sergeant, I want to direct your attention to an area of the video right above the hand truck. Do you see that area?
MR. BUKHENIK: I do.
MR. JACKSON: Do 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's sort of a dirty white rag?
MR. BUKHENIK: I cannot tell what it is.
MR. JACKSON: Fair enough.
MR. JACKSON: We can take that down.
MR. JACKSON: We've seen a corrected version of that sally port video from that camera. There is also another camera on the opposite side of the sally port; 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 of this video, that actually would show the right rear portion of the SUV as it was parked in that sally port, would it not?
MR. BUKHENIK: Yes, it would.
MR. JACKSON: Let's take a look, with the Court's permission --
MR. JACKSON: This has already been marked as 446. I believe it was introduced last week. With the Court's permission, could we display that?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you.
BY MR. JACKSON:
MR. JACKSON: I know it's very hard to see, Sergeant, but could you tell me, as the video is paused right here at the beginning and timestamp, 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 is no vehicle in the foreground this side of that antique police car, correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: You also can see that this video is, in fact, not inverted; it's the correct orientation, right?
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: That's correct.
MR. JACKSON: If we could play -- may I approach the screen briefly?
JUDGE CANNONE: Yes.
MR. JACKSON: If we could, with the Court's permission, begin playing at this time? This is about 5:07 and 10 seconds. That's time of day. If we could play for about a little less than a minute?
JUDGE CANNONE: Okay.
(Whereupon, the video is played and paused.)
BY MR. JACKSON:
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 as we just watched that video in realtime?
MR. BUKHENIK: Fifteen seconds, maybe.
MR. JACKSON: Okay. And do 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 sally port. There is an individual standing behind the SUV.
MR. JACKSON: And do you see what the time of day is on that timer?
MR. BUKHENIK: I do not.
MR. JACKSON: Can you see that it's paused at 5:50, 5-0, and 46 seconds?
MR. BUKHENIK: I cannot.
MR. JACKSON: This is the last time that I would ask -- unfortunately, I cannot zoom on this, Your Honor. With the Court's permission, may the sergeant make one more trip to the screen to give us the exact time that this is paused?
JUDGE CANNONE: This is the last time. Sergeant, would you please?
MR. BUKHENIK: Thank you, Your Honor.
(Witness complies.)
BY MR. JACKSON:
MR. JACKSON: What was the time that -- what is the timestamp where the video was paused?
MR. BUKHENIK: 5:50:46.
MR. JACKSON: 5:50 and 46 p.m., correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: 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?
MR. BUKHENIK: Approximately 48.
MR. JACKSON: Forty-two minutes, right?
MR. BUKHENIK: Excuse me. Forty-two.
MR. JACKSON: That's okay. And Ms. Read's vehicle which shows the right rear taillight portion just appears, correct, at 5:50?
MR. BUKHENIK: There is a vehicle that appears. There appears to be an individual standing behind the vehicle. It's not just the taillight that appears.
MR. JACKSON: But, Sergeant, the exact time that would show what Trooper Proctor was doing at the right rear taillight, that is missing?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: The exact time that would show the person who you identified on Wednesday as being Trooper Proctor, that video is not there, correct?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 taillight the moment the SUV arrived in police custody in that sally port, correct?
MR. LALLY: Objection.
JUDGE CANNONE: You can ask that differently.
BY MR. JACKSON:
MR. JACKSON: Is there any other video other than this one that would show the exact condition of that taillight as it pulled into the driveway, into the sally port, or is this the only one?
MR. BUKHENIK: From that location?
MR. JACKSON: Correct.
MR. BUKHENIK: That is the video that captures that time frame.
MR. JACKSON: And that is also the video that captures that area of the car, correct, the right rear portion of the car?
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.
MR. JACKSON: It's not there, Sergeant Bukhenik. I'm not splitting words with you, splitting hairs. It's not there. It's gone, correct?
MR. BUKHENIK: It's not on the screen, no.
MR. JACKSON: It's not anywhere, is it?
MR. BUKHENIK: I do not know.
MR. JACKSON: That's all I have, Your Honor.
JUDGE CANNONE: Mr. Lally?
MR. LALLY: Thank you, Your Honor.
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: 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 Department, correct?
MR. BUKHENIK: That's correct.
MR. LALLY: So 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 jury?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. You can't lead, Mr. Lally.
MR. LALLY: Sure.
BY MR. LALLY:
MR. LALLY: What, if anything, was done to alter or change that video between the time that you received it to the time that it was played before the jury?
MR. JACKSON: Objection.
JUDGE CANNONE: Ask it differently.
BY MR. LALLY:
MR. LALLY: As far as the condition when you 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 --
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow the answer.
MR. BUKHENIK: -- between when we received it from the Canton Police Department, when I played it and when it was played for you.
BY MR. LALLY:
MR. LALLY: Now, as far as the cameras being -- 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 is lack of motion. The video does not record because it is 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?
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: Your Honor, with the Court's permission, I would ask that the entirety of that five minutes and fifty-one seconds of video be played for the jury.
JUDGE CANNONE: It may.
MR. LALLY: May I have one moment, Your Honor?
JUDGE CANNONE: Yes.
(Whereupon, the video is played.)
MR. LALLY: If you could pause it there, Ms. Gilman.
(Whereupon, the video is paused.)
BY MR. LALLY:
MR. LALLY: 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 video into the sally port area, correct?
MR. BUKHENIK: That's correct.
MR. LALLY: Thank you.
MR. LALLY: Ms. Gilman, if you could.
(Whereupon, the video is played.)
MR. LALLY: Ms. Gilman, if you would pause it there, please.
(Whereupon, the video is paused.)
MR. LALLY: Sergeant, I am 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'd just ask you to take a look at the door and, in particular, the snow on the door when he closes that door.
MR. LALLY: Ms. Gilman, if you could.
(Whereupon, the video is played.)
MR. LALLY: If you would pause for just one moment.
(Whereupon, the video is paused.)
MR. LALLY: Sergeant, if I could direct your attention back to the Ring video camera, 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 do you recall that portion of the video when it's alleged that Ms. 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.
MR. LALLY: Ms. Gilman, if you could.
(Whereupon, the video is played and ended.)
MR. LALLY: Thank you, Ms. Gilman. And, Mr. Officer, if we can have the lights back up.
BY MR. LALLY:
MR. LALLY: Now, Sergeant, that video starts at approximately 5:30 p.m. on January 29th, correct?
MR. BUKHENIK: Correct.
MR. LALLY: And is that before or after the Ring video, 153 from Exhibit 6 at 5:07 in the morning at Mr. O'Keefe's house, when you can see the defendant's smashed taillight?
MR. JACKSON: Objection.
JUDGE CANNONE: The objection is sustained. Ask the question differently.
BY MR. LALLY:
MR. LALLY: 5:30 p.m. on January 29th. Is that before or after 5:07 a.m. when you observed 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, Ms. Roberts and Ms. 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 say 8:22 in the morning at some point when a Canton cruiser parks 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 at One Meadows Ave., 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 vehicle from the defendant's father's house in Dighton when that vehicle is being loaded onto a truck and you can see the taillight there?
MR. JACKSON: Objection. Withdrawn.
MR. BUKHENIK: It's after.
BY MR. LALLY:
MR. LALLY: Now, again, you had a conversation or an interview with the defendant on the afternoon of January 29th when you were in Dighton, correct?
MR. BUKHENIK: That's correct.
MR. LALLY: And during the course of that interview, she made statements about her broken taillight and when that occurred, correct?
MR. JACKSON: Objection.
JUDGE CANNONE: Do you want the instruction?
MR. JACKSON: Sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Did you get the whole sentence out, the whole question out?
MR. LALLY: Yes.
JUDGE CANNONE: Okay.
MR. JACKSON: It's outside the scope. Her statements I never addressed.
MR. LALLY: That's not outside the scope because he's raised as far as issues where Trooper Proctor was around the taillight. And the defendant said to them earlier, hours before they were back at the Canton Police Station, that she broke it the night before.
MR. JACKSON: Which you got out on direct examination which I did not address on cross.
JUDGE CANNONE: All right. You are implying that Proctor broke the taillight?
MR. JACKSON: I'm implying that Proctor was standing near the taillight based on video surveillance. I'm not implying it. He was standing near the taillight based on video surveillance.
JUDGE CANNONE: Okay. If you intend to argue it, I'll let the prosecutor get this question in.
MR. JACKSON: He's allowed to get in questions that he asked on direct examination --
JUDGE CANNONE: This is one of the problems of taking so many days off. You didn't touch upon this at all?
MR. JACKSON: No. Zero.
JUDGE CANNONE: All right. I'm not going to allow it. You can argue it.
MR. LALLY: Understood.
(Whereupon, the sidebar conference concluded.)
BY MR. LALLY:
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 or 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 sally port.
MR. LALLY: And, at any point in time that you were in the sally port area of the Canton Police Department garage, did you or Trooper Proctor ever go near, touch, manipulate the rear passenger side taillight 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 at approximately 10:41 a.m. on January 29th. Do 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 why you would make those statements to the medical examiner?
MR. BUKHENIK: The Massachusetts General Law directs us, just as it gives the district attorneys power and authority over all death investigations. That's the following section, Section 4 of that chapter. Excuse me. The following section from Section 4. Section 5 of that chapter directs all state, medical and police entities to work in coordination with the medical examiner's office. By law, we are supposed to work together on medical-legal investigations that the medical examiner's office conducts. We conduct a criminal portion of the investigation. They conduct the medical portion of the investigation. Thus, I contacted the medical examiner's office and advised them about what we had learned at the time. Up to that point, we had learned that the defendant stated that she hit him. 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. That way, they would document it but also be prepared to investigate the case with the most up-to- date 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 had not.
MR. LALLY: And had you obviously 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: The Canton Police, Sergeant Goode.
MR. LALLY: In addition to that, did you or Trooper Proctor speak with any of the Canton Fire personnel?
MR. BUKHENIK: Yes, we did.
MR. LALLY: And who did he speak with?
MR. BUKHENIK: I believe it was Firefighter Flematti.
MR. LALLY: So Firefighter Flematti; 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 had transpired?
MR. BUKHENIK: Based on what I learned from observing the injuries, I could tell that the glass --
MR. JACKSON: Objection, Your Honor.
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. Your Honor, may I have a moment?
JUDGE CANNONE: Yes.
MR. LALLY: Thank you, sir. I have no further questions, Your Honor.
JUDGE CANNONE: Any recross?
MR. JACKSON: Very briefly, Your Honor.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: In your report to the OCME, you said it was a 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: Fair enough.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Last sentence.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
BY MR. JACKSON:
MR. JACKSON: Thank you, Sergeant. Does that refresh your recollection?
MR. BUKHENIK: Yes, it does.
MR. JACKSON: What did you report to the OCME?
MR. BUKHENIK: That there was a possibility the decedent 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 Flematti telling you that she said, Ms. 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 Flematti 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.
MR. JACKSON: And Sergeant Goode then related that to you, correct?
MR. BUKHENIK: At some point, yes.
MR. JACKSON: 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, a 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 date?
MR. BUKHENIK: I'm not sure. It was at some point in either late April or early May.
MR. JACKSON: After we had started this trial?
MR. LALLY: Objection.
JUDGE CANNONE: Do you know?
MR. BUKHENIK: I do not know.
BY MR. JACKSON:
MR. JACKSON: Well, 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: You're 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?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
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 sustained the Commonwealth's objection at sidebar, Mr. Jackson.
BY MR. JACKSON:
MR. JACKSON: Last question: Who provided the video?
MR. BUKHENIK: I do not know.
MR. JACKSON: The Canton Police Department, wasn't it?
MR. BUKHENIK: You asked who. That's an entity.
MR. JACKSON: 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 all set, sir.
MR. BUKHENIK: Thank you, Your Honor.
(Whereupon, the witness is excused.)