Commonwealth v. Read — Trial ArchiveBrian Tully — Direct (Part 1)
411 linesPROCEEDINGS June 12, 2024 EXCERPT - TESTIMONY OF BRIAN TULLY
(Court in session at 9:12 a.m.)
(Defendant present. Jury present.)
MR. LALLY: The Commonwealth calls Lieutenant Brian Tully to the stand.
Whereupon, BRIAN TULLY having been first duly sworn, was examined and testified under oath as follows:
JUDGE CANNONE: All right, Mr. Lally. Whenever you're ready.
MR. LALLY: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good afternoon, sir.
MR. TULLY: Good afternoon.
MR. LALLY: Could you please state your name and state your last name for the jury?
MR. TULLY: Brian Tully, T-U-L-L-Y.
MR. LALLY: And how are you employed, sir?
MR. TULLY: With the Massachusetts State Police.
MR. LALLY: And how long have you been a member of the state police?
MR. TULLY: Eighteen years.
MR. LALLY: And what rank or assignment do you currently have with the Mass. State Police?
MR. TULLY: The rank I hold is detective lieutenant and my current role is the Unit Commander for the Norfolk State Police Detective Unit.
MR. LALLY: Now, how long have you been -- let me ask you first, as far as -- how long have you been a lieutenant with the state police?
MR. TULLY: I was a first lieutenant in 2021. I then attained the rank of detective lieutenant later in 2021.
MR. LALLY: With reference to your current unit, how long have you been a member of that unit?
MR. TULLY: I've been with the Norfolk State Police Detective Unit for 12 years.
MR. LALLY: And, prior to and throughout the course of your work within the detective unit, the Norfolk D.A.'s Office for the state police, what, if any, specialized training have you received and/or given in regard to investigations and how they are conducted?
MR. TULLY: For the first 10 years as the rank of trooper and sergeant, I was on the homicide section of the unit. When first entering the unit, I received instruction on how to conduct homicide and death investigations. In addition to that, I attended over 200 hours of specialized training in the use of cell phones and cell phone technology in the furtherance of criminal investigations. Further on, I have now been an instructor about cell phones and cell phone technology in criminal investigations. I have taught death investigation classes around the Commonwealth, as well as search and seizure law in Massachusetts.
MR. LALLY: Now, if I could ask you, just with respect to your unit, if you could explain to the jury sort of what is the role and what does your unit do with respect to death investigations within Norfolk County?
MR. TULLY: So each district attorney's office has a state police detective unit assigned to it. So Mass. General Law Section 38, Section 4 says that the district attorney is in charge of all death investigations. So if someone passes away essentially not in the presence of the doctor or the circumstances that led to their death was outside the presence of medical care, the district attorney is in charge of the investigation or their representative. And so each D.A. has a state police detective unit assigned to them to act as their representative. In certain jurisdictions like Boston, Worcester and Springfield, the D.A.s in those counties have said that those local departments can be their representatives. But throughout the Commonwealth, the state police is the D.A.'s representative in those death investigations.
MR. LALLY: Now, as far as assignments go or as far as -- how is it that -- well, as far as how an investigation is run, how is it that a call comes in? If you could take the jury through sort of from the time the call comes in how that investigation proceeds.
MR. TULLY: I'll talk in a typical state. Oftentimes someone passes away, again, not in the presence of a doctor, gets found by somebody, a loved one, a friend, a passer-by. They call 911, which gets routed to the local police, who respond and come to learn that someone has passed away in the circumstance. That police department will then call the troop headquarters of the state police. The state police is cut up into different troops by geographic location. Each troop duty lieutenant would have a list of who the on-call person is for the state police detective unit of jurisdiction. They would then call that trooper or sergeant directly to inform them that there is a death in a certain community and give them a telephone number to contact somebody who's directly on scene to get more information.
MR. LALLY: Now, as far as your role as sort of the supervisor or the lieutenant in charge of the unit, can you describe to the jury sort of what your role is in regard to those investigations?
MR. TULLY: So within the detective unit, we have the homicide section. Our narcotic section does narcotics investigations. And a special investigations section. So specific to the homicide section, there are certain levels of supervision. We have a sergeant assigned to the homicide section. I have an executive officer who is a lieutenant and then me. So multiple levels of supervision specific to any of the sections including the homicide section.
MR. LALLY: Now, turning your attention to January 29th, 2022, at some point did you become aware in the morning with regard to a death within the town of Canton?
MR. TULLY: Yes.
MR. LALLY: What, if any -- when did you become aware and how did you become aware initially of what had transpired?
MR. TULLY: Shortly after 7:00 a.m. that date, I received a call from Sergeant Yuriy Bukhenik, informing me that a person by the name of John O'Keefe was found unresponsive in Canton. He was transported to the Good Samaritan Hospital, where it was expected he was not to survive. Normally, I would not get a call like that but we learned that Mr. O'Keefe was an active Boston police officer. Sergeant Bukhenik wanted to make me aware of it at that point.
MR. LALLY: And so then what happened from there as far as your unit's involvement?
MR. TULLY: So as we learned more information about what was found on scene by the Canton Police Department, Trooper Proctor, who was the on-call trooper that day on the schedule, and Sergeant Bukhenik responded to Canton Police to begin the investigation. And they would keep me updated as they learned more information.
MR. LALLY: Now, as far as your unit is concerned, what, if any, role does your unit have or what, if any, jurisdiction does your unit have with relation to any kind of death, whether it be homicide, suicide, unattended death within the confines of Norfolk County?
MR. TULLY: We have exclusive jurisdiction by law, but the law also suggests that we need to work with the local police department as well.
MR. LALLY: And so how is it that typically, in a typical investigation, that your unit would work in conjunction with the local police departments in relation to a death investigation?
MR. TULLY: Their detective unit would be involved, if they have one. Some departments in Norfolk County don't. They would stand by to wait for our arrival. There would be constant communication between the responding trooper and the detective on scene about things that need to be done prior to our arrival but, essentially, wait for our guidance on what to do next.
MR. LALLY: And, as far as certain investigations go, are there decisions sometimes that are made with regard to your involvement or maybe your unit not being involved in a death investigation?
MR. TULLY: Yes.
MR. LALLY: And how are those determinations made and who makes those determinations?
MR. TULLY: It falls to either the person who is on call or their supervisor. We don't respond to all of those calls. So a police officer may call and say that a woman in her eighties has passed away in her bed overnight. Her primary care doctor has said that she struggled with cancer or treatment and that that doctor is willing to sign a death certificate. In those circumstances, it's not suspicious. It's not suicide or a fatal opiate overdose. We would not respond in that case. That would be one that we would decline. In other circumstances, we may get the call and then learn that the person is going to survive. So we will not respond. We typically will mirror the office of the chief medical examiner. If they are involved then we will definitely be involved.
MR. LALLY: Now, returning to that point as far as the office of the chief medical examiner is concerned, in any sort of death investigation that your unit is involved in, what, if any, involvement or communication do troopers from your unit or yourself have with the office of the chief medical officer?
MR. TULLY: We have constant communication. The law that I cited also says that the office of the chief medical officer has exclusive jurisdiction, as well, to determine the cause and manner of death. So we work closely, hand in hand, to figure out the circumstances that led to the death.
MR. LALLY: Now, as far as working close, hand in hand, with the medical examiner's office, what does that sort of typically entail?
MR. TULLY: Phone calls. We will call in and speak to the intake person or the on-call doctor to tell them what we've learned or what we are observing. We forward reports in every case to the doctors so they understand at least what we've learned in the first 24 hours. Doctors will often reach back out to us, asking for scene photographs, more reports, ask question. And, in instances where it's a suspicious death, we will send an investigator to the autopsy to stand with the doctor to make observations and answer any questions for the doctor.
MR. LALLY: Now, as far as the determinations that are ultimately come to by the medical examiner -- I'm sorry. Just let me -- Lieutenant, as far as any determinations that are made with reference to either cause or manner in any instance with the medical examiner, what, if any, role do you or anyone from your unit have with regard to that decision by the medical examiner?
MR. TULLY: We have little to no role outside of providing information.
MR. LALLY: And, as far as the determination, specifically, whether it's manner or cause, what, if any, impact does that have with regard to any death investigation that you're doing?
MR. TULLY: Well, the cause will give us a big incidence. So we want to know if the person died of a heart attack or if they died of a gunshot wound. That's big when it comes to then making charging decisions about the circumstances. So it's important to learn the cause, and to get the doctor's input on the manner is also helpful.
MR. LALLY: But, as far as if the manner is found to be undetermined, would that impact what you've learned through the rest of the course of your investigation as far as charging goes?
MR. TULLY: No. That determination by the OCME is often in the early stages of the investigation. And, as we learn more information, the circumstances can change.
MR. LALLY: And the determination that is made by the medical examiner, that's strictly from a medical perspective, correct?
MR. TULLY: Correct.
MR. LALLY: Now, with regard to January 29th, 2022 and this call that is initially received, Trooper Proctor and Sergeant Bukhenik then essentially respond to the Canton Police Department first; is that correct?
MR. TULLY: Yes.
MR. LALLY: And, as far as your role as it pertains to this or any other investigation, how much involvement do you have or how are you sort of apprised of what's going on?
MR. TULLY: Sergeant Bukhenik in this case and in typical cases, he keeps me updated by telephone. So I can supervise from anywhere with my cell phone. He's giving me updates about what he's learning. We'll discuss what the next steps should be. That's what transpired over the morning of January 29th.
MR. LALLY: Now, over the course of the morning of January 29th, what, if any, conversations did you have with relation to Canton Police Department's involvement or ongoing or further involvement with regard to this investigation?
MR. TULLY: I had spoken with the acting chief at the time, the current chief. Excuse me. The chief at the time, Kenneth Berkowitz, about the involvement in the Canton Police Department. We talked about the homeowner at 34 Fairview and his relationship to his department. And, because of the appearance of a conflict, we had made a decision that the Canton Police was going to take a step back from the investigation and that the state police would do the investigation without them.
MR. LALLY: Now, as far as that appearance of a conflict or step back, as you've termed it, what was your understanding at that time as far as what the role of the Canton Police would be?
MR. TULLY: Really to provide support. So anytime we are in a local community and we need the support of local police, if we are going to start knocking on doors, we want to make sure that they are aware or present. They have resources in town, whether it be lights or barriers, that we may need to access. So I would define it as a support role.
MR. LALLY: Now, with respect to those conversations you mentioned that you had yourself and what the then current chief, Kenneth Berkowitz, who, if anyone else, was involved in those conversations?
MR. TULLY: The district attorney.
MR. LALLY: And that would be Mr. Morrissey; is that correct?
MR. TULLY: Yes.
MR. LALLY: And is that abnormal for him to be involved in conversations in regard to a police department and any sort of appearance of conflict?
MR. TULLY: No. It's not abnormal for him to be involved.
MR. LALLY: And, as far as his involvement and his conversations as far as you're aware, did they evolve or were they any greater or less than the conversation that you had with Chief Berkowitz?
MR. TULLY: No. They were the same conversations.
MR. LALLY: Let me ask you this, Lieutenant: At some point over the source of this case or at some point over the course of this investigation, did you become aware of certain text messages on Trooper Proctor's personal phone?
MR. TULLY: Yes.
MR. LALLY: Upon your being made aware of those text communications, what, if anything, did you as his supervisor, what, if anything did you do?
MR. TULLY: I had a long discussion with him about the content and nature of them. I expressed my displeasure in his unprofessionalism and the content of them. And then I reported up my chain of command.
MR. LALLY: Was he admonished in any way?
MR. TULLY: He was by me at that conversation, yes.
MR. LALLY: Now, sir, again, just sort of in general terms, you're familiar with this investigation as you were supervising the unit that was investigating it, correct?
MR. TULLY: Yes.
MR. LALLY: Now, is it typical practice in conducting homicide or death investigations as far as civilian witnesses are concerned to seize their personal cell phones?
MR. TULLY: It happens, yes.
MR. LALLY: And is that a practice that occurs with respect to every single witness in every single case?
MR. TULLY: No.
MR. LALLY: And so what are sort of the parameters or what would be some of the reasons that certain civilian witnesses' cell phones would be seized versus others?
MR. TULLY: You use the word "seize." When I think of the word "seize," I'm thinking in the legal context where I think there's probable cause to believe, it's more likely than not there is evidence of the crime I'm investigating held within the data of that phone. Sometimes if we believe there is information on a phone, we may ask for consent for that one specific thing or for that one specific reason. But outside of that, unless I have that belief that there is data on a phone, I won't ask for consent or seize a phone and pursue a search warrant.
MR. LALLY: Now, are you aware of certain cell phones that were either seized or granted access via consent in relation to this investigation?
MR. TULLY: Yes.
MR. LALLY: And, specifically, Mr. O'Keefe's phone was taken into custody, correct?
MR. TULLY: Yes.
MR. LALLY: And the defendant's phone was taken into custody on January 29th, as well?
MR. TULLY: Yes.
MR. LALLY: Now, as far as civilians, there were two civilian witnesses whose phones were given via consent and then extracted, that being a Jennifer McCabe and a Kerry Roberts, correct?
MR. TULLY: Yes.
MR. LALLY: And so why was it that Ms. McCabe's phone and Ms. Roberts' phone was taken versus some other witness in the case?
MR. TULLY: They had information relative to the actions of Ms. Read and the communications with specifically those two individuals on the morning of the 29th. So we wanted to memorialize them and save them.
MR. LALLY: Now, sir, with respect to your involvement on January 29th, where and when did you sort of leave and become involved in the investigation beyond sort of a supervisory role?
MR. TULLY: Shortly after noontime, we had learned more information that necessitated a broader search. So I had reached out to Lieutenant Kevin O'Hara with the state police SERT team to assist with processing the scene. And so since we were going to be processing a scene, it was prudent for me to leave my house, dig out and drive to Canton.
MR. LALLY: And, sir, with respect to you mentioned dig out from your house, what were the conditions like around the time that you were leaving your house?
MR. TULLY: There was probably eight to 10 inches at the house. So I had to dig out my driveway and the large snowbank at the end of the driveway that's caused by the plow in order to get a vehicle out and head to Canton.
MR. LALLY: And where is it first that you were heading to?
MR. TULLY: I first went to the Canton Police Department to talk to Chief Berkowitz and wait for the arrival of the SERT team and then to 34 Fairview.
MR. LALLY: And, as far as the SERT team was concerned, if you can, explain to the jury sort of the process from your perspective, from your end, as far as activating the SERT team, what it is that they do and why you had requested them.
MR. TULLY: We work with Lieutenant O'Hara frequently. I called him on his cell phone. And the SERT team is out of a different chain of command. So the state police is a very paramilitary organization with specific chains of commands, with different structures. So I reached out to him and asked for his assistance with this investigation. He had to get further approval up his chain of command mostly for overtime and to pay the troopers to come out. That would be the way that I would make a formal request of the SERT team.
MR. LALLY: And so the initial phone call that you make to Lieutenant O'Hara, you don't have the power or the authority to sort of direct him to dispatch his team and go to 34 Fairview, correct?
MR. TULLY: Correct.
MR. LALLY: And so as far as that initial phone call that you make to Lieutenant O'Hara, do you know about what time of day that was?
MR. TULLY: It was about two in the afternoon.
MR. LALLY: And what was the purpose of sort of that initial phone call that you made to Lieutenant O'Hara?
MR. TULLY: To give him a head's-up because there needs to be a conversation up my chain of command. So above me there is a detective captain and a major. My major really needs to talk to his major to make the formal request, but I wanted Lieutenant O'Hara to be aware the request was coming so that he could at least start polling his people to see who was available to respond to Canton.
MR. LALLY: And, with respect to the weather, if you could just in general terms describe for the jury sort of what you observed as far as the weather conditions on that day?
MR. TULLY: I observed blizzard-like conditions. It was snowing heavily, windy, low visibility.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, I'm showing you a series of documents and just ask if you could look at those and look up when you're finished.
MR. TULLY: (Witness complies.)
MR. LALLY: And do you recognize those, sir?
MR. TULLY: I do.
MR. LALLY: And what do you recognize those to be?
MR. TULLY: They are certified records from the U.S. Department of Commerce out of Ashville, North Carolina for weather reports from Norwood Memorial Airport in Massachusetts for the dates of January 2022 and February 2022.
MR. LALLY: So for the entirety of the month of January 2022 as well as February 2022, correct?
MR. TULLY: Yes.
MR. LALLY: And are you familiar with the Norwood Municipal Airport and where it is in relation to the town of Canton?
MR. TULLY: Yes.
MR. LALLY: And where is it?
MR. TULLY: It's the next town over.
MR. LALLY: And, as far as -- are you familiar with a Neponset Street in Norwood?
MR. TULLY: I am.
MR. LALLY: And does Neponset Street also carry into the town of Canton, as well?
MR. TULLY: Yes.
MR. LALLY: And, with regard to 34 Fairview Road, about how far away is 34 Fairview from Neponset Street?
MR. TULLY: From Neponset Street it's a mile, two miles.
MR. LALLY: So relatively the same geographic area as far as the Norwood Municipal Airport and 34 Fairview Road?
MR. TULLY: I would say as the crow flies from 34 Fairview to Norwood Municipal Airport, that's probably three miles.
MR. LALLY: And, sir, with regard to the records before you, from your memory of those dates and those times in January and February of 2022, is that a fair and accurate portrayal of what the weather was like temperature-wise as well as precipitation?
MR. TULLY: Yes.
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. JACKSON: Fine.
MR. TULLY: Yes.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce and admit as the next exhibit.
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. Come up.
(Whereupon, there was a sidebar conference as follows:)
MR. JACKSON: Really? I want to go to that.
JUDGE CANNONE: Good luck. All right. What is your objection?
MR. JACKSON: Foundation. He didn't prepare these. They may be certified from somebody else, but he can't speak to these. These are climatological records that he didn't prepare. He doesn't know they are prepared or how they are kept. I have no problem with the evidence that Mr. O'Keefe -- not that you care what I think, but the evidence that Mr. Lally has gotten is fine. There is no foundation for that. There is no authentication for that.
JUDGE CANNONE: How did he get these?
MR. LALLY: It's a certified self- authenticating document. It's a business record.
JUDGE CANNONE: So go ahead and build your foundation, and I'll instruct on business record if you do.
MR. JACKSON: He's going to try to build a foundation that this witness knows that these are kept in the ordinary course of business, how they are kept and the data entered.
JUDGE CANNONE: I don't know.
MR. JACKSON: Okay.
MR. LALLY: It states it on the front. It's a raised seal certification.
JUDGE CANNONE: Do you need these from him right now?
MR. LALLY: No.
JUDGE CANNONE: Okay. So let me take a look at this. Let's just keep going with the evidence. Okay?
MR. LALLY: Sure.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Madam Court reporter, please mark this for identification.
(Whereupon, weather records were entered and marked "JJJ" for Identification.)
COURT REPORTER: "JJJ" for Identification.
BY MR. LALLY:
MR. LALLY: And so, Lieutenant, at some point you do respond to 34 Fairview Road; is that correct?
MR. TULLY: Yes.
MR. LALLY: And do you recall about what time it was that you arrived there?
MR. TULLY: 5:30 p.m.
MR. LALLY: And, when you arrived there, who, if anyone else, from the state police preceded your arrival?
MR. TULLY: There was at least two members of the SERT team present, including Lieutenant O'Hara.
MR. LALLY: And, if you recall, where were they located in relation to the residence?
MR. TULLY: They were directly in front of the residence.
MR. LALLY: Now, as far as their search was concerned, how was the determination made or who, if anyone, made a determination as far as where they were going to search?
MR. TULLY: So typically when I work with Lieutenant O'Hara, I kind of give him directions. So in this case specifically, I learned from Sergeant Bukhenik that Mr. O'Keefe was found in an area between the flagpole and the fire hydrant. So we concentrated on that area. And so I talked with Lieutenant O'Hara that this is going to be our parameters. And he instructed his people how to deploy to that area.
MR. LALLY: Now, sir, as far as beyond sort of directing as far as an area is concerned, what, if any, other involvement do you typically have when it comes to the SERT team and how they conduct their search?
MR. TULLY: They're professionals with expertise in that. So essentially I just point them in the direction and it's up to them to figure out how to deploy and get the mission done.
MR. LALLY: And so what, if any, involvement do you have as far as when they begin and how many people are involved and when they end or anything like that?
MR. TULLY: I'll have some consultation with Lieutenant O'Hara but it's really his call to make.
MR. LALLY: And, as far as this particular search on January 29th, do you know how many members of the SERT team eventually responded and how the search was conducted?
MR. TULLY: There were seven members. Most, if not all, had typical snow shovels and they used those shovels to systematically go through the snowbank that was in front of 34 Fairview within these two parameters.
MR. LALLY: And, over the course of -- now, as far as where they were searching, can you describe sort of the road conditions as far as snow removal is concerned or where the precipitation amounts were concentrated with respect to the roadway?
MR. TULLY: So the road was only plowed really right down the middle. Barely two vehicles could get by at a time. The snowbanks on either side of the road were protruding into the road. So that was kind of the snow setup. Our cruisers were just kind of buried in snowbanks a little bit down the road as we excavated this.
MR. LALLY: And, sir, as far as this search was concerned, what, if any, information did you provide to Lieutenant O'Hara as far as items being searched for or what was he directed to be looking for?
MR. TULLY: There were items, two items specifically. We were looking for potential pieces of a taillight of a vehicle and a shoe.
MR. LALLY: And, as far as a shoe and potential pieces of a taillight, where did that information come from or why were those the items that were being looked for?
MR. TULLY: Relative to the shoe, when Sergeant Bukhenik and Trooper Proctor responded to Good Samaritan Hospital and collected the clothing of Mr. O'Keefe, they realized that there was only one shoe present at the hospital. They had contacted the Canton EMS and other people who cared for him and they learned that a shoe wasn't removed at the scene and that when Canton Fire and EMS arrived, Mr. O'Keefe only had one shoe on. So it was important to locate that second shoe. Relative to the taillight, we had gotten information that witnesses stated that Ms. Read's vehicle had a broken taillight. And so we were looking for evidence of it being broken at that location.
MR. LALLY: And, with respect to the search that was conducted by Lieutenant O'Hara and members from his SERT team, where was that in relation to either the roadway or the front lawn of 34 Fairview?
MR. TULLY: As we were excavating or as they were excavating this snowbank in front of it, we realized that the snowbank protruded about three feet into the roadway. So as they were moving this first part of the snowbank, we're essentially shoveling the road. And so as they continued on there, they would then hit the curb area.
MR. LALLY: And, as far as beyond the curb area, as far as grass or the front lawn, was the SERT team members, from your observations, able to go beyond the curb, into the front lawn area?
MR. TULLY: No. They were having difficulty shoveling with a plastic shovels from the lawn.
MR. LALLY: Lieutenant Tully, with respect to the SERT team in their search, what, if anything, did you do to document and memorialize their efforts as far as any items that were recovered?
MR. TULLY: I took photographs of items that were eventually found in place and documented them in a report and they were collected in evidence bags.
MR. LALLY: May I approach the witness, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Your Honor, if I may have one moment?
JUDGE CANNONE: Yes. Jurors, we'll be stopping at four today.
BY MR. LALLY:
MR. LALLY: Sir, with respect to what I placed before you as Book 2, I am going to direct your attention to what's been marked as Exhibits 111 through 134. And, just in general, I'm going to ask you if you recognize those.
MR. TULLY: I do.
MR. LALLY: And what do you recognize those as?
MR. TULLY: The photographs that I took that afternoon.
MR. LALLY: May I approach just to retrieve, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Your Honor, I don't want to belabor the point but if I could just publish just a couple of these exhibits?
JUDGE CANNONE: Okay.
MR. LALLY: And, Ms. Gilman, if I could have Exhibit 111.
BY MR. LALLY:
MR. LALLY: Lieutenant, there should be a laser pointer on the desk before you. If I could ask, first of all, do you recognize what is up on the screen as Exhibit 111?
MR. TULLY: Yes.
MR. LALLY: And what do you recognize that to be?
MR. TULLY: The front of 34 Fairview Road in Canton and the flagpole I previously mentioned.
MR. LALLY: And, if you could, using the laser pointer, just direct the attorney's attention to what, if anything, of significance you observed in this exhibit.
MR. TULLY: So this picture was taken to memorialize this piece of red plastic here.
MR. LALLY: And, Ms. Gilman, if I could have Exhibit 114.
MR. LALLY: Again, Lieutenant, do you recognize what's up on the screen as Exhibit 114?
MR. TULLY: Yes.
MR. LALLY: And, if you could, using the laser pointer, direct the jury's attention to what, if anything, of significance you observed there?
MR. TULLY: It's that same previously mentioned red plastic. The purpose of the multiple photographs, I'll take one as overalls and, as I get closer, I'll take more photographs to give better context.
MR. LALLY: And these photographs of these items, were they taken -- the items that you're photographing, were they moved in any way prior to you memorializing them with photographs?
MR. TULLY: Yes. This piece in particular, a SERT team member, as he was removing the snow with the shovel, had picked up this piece of plastic with it. I asked him to place it back where he found it, where it approximately was, so that I could memorialize it in place.
MR. LALLY: So it was picked up and you asked him to put it back where he had found it, and he did so?
MR. TULLY: Yes.
MR. LALLY: Ms. Gilman, if I could have Exhibit 117.
MR. LALLY: And, again, Lieutenant, do you recognize what's up on the screen as Exhibit 117?
MR. TULLY: Yes.
MR. LALLY: What do you recognize that to be?
MR. TULLY: Members of the SERT team doing their excavation of the snowbank.
MR. LALLY: And, Ms. Gilman, if I could have Exhibit 120.
MR. LALLY: And, again, sir, do you recognize what's up on the screen as Exhibit 120?
MR. TULLY: Yes.
MR. LALLY: And, if you could, using the laser pointer direct the jury's attention to what, if anything, of significance you observed in this photograph.
MR. TULLY: A black Nike sneaker with a white sole that was recovered in the snowbank.
MR. LALLY: And, at some point subsequent to this, what, if any, comparison did you do visually with the sneaker that you observed in this photograph with respect to the sneaker that was recovered from the Good Samaritan by Trooper Proctor and Sergeant Bukhenik?
MR. TULLY: They matched both in make and model, size. The shoe that was recovered by the troopers at the hospital was a right sneaker. This one found was the left or a left.
MR. LALLY: Ms. Gilman, if I could have Photograph 127.
MR. LALLY: And, again, sir, do you recognize what's up there as 127?
MR. TULLY: Yes.
MR. LALLY: And, if you could, using that laser pointer direct the jury's attention to what, if anything, of Significance you observe in that photograph?
MR. TULLY: A clear piece of plastic.
MR. LALLY: Now, with respect to this clear piece of plastic, what, if anything, did you observe or did you note of significance as far as the surface of that particular piece of clear plastic?
MR. TULLY: I noticed that it's curvature in shape and there are raised dimples, for lack of a better term, that were along the outside of this piece of plastic or on one side of it.
MR. LALLY: Now, Ms. Gilman, if I could have lastly from this group Exhibit 131.
MR. LALLY: And, again, Lieutenant, do you recognize what's up on the screen as Exhibit 131?
MR. TULLY: Yes.
MR. LALLY: And what do you recognize that to be?
MR. TULLY: That is a photograph that I took at 34 Fairview that depicts a red piece of plastic.
MR. LALLY: Ms. Gilman, you can take that down. Mr. Officer, if we could have the lights back on. Thank you very much, sir.
MR. LALLY: Now, with respect to the items that were observed and photographed by you on January 29th during the SERT team search, what happened with those items from the scene?
MR. TULLY: They were collected, placed in an evidence bag and brought back to our offices to be secured.
MR. LALLY: And, if you could, as far as the evidence sort of system is conducted with regard to this case and other cases in investigations within your unit, can you explain to the jury that process of sort of when an item is seen or an item of evidentiary value is seized, what happens with it?
MR. TULLY: First, to provide context, by policy, I am the evidence officer for the unit, and I have assistant evidence officers who assist me in the caretaking of the evidence. So we will use this particular instance where evidence is collected at a scene. It's memorialized in place and placed, if it's in the right shape and the right condition, in a paper bag with some notes placed on the outside of the bag, transported to our office, where it is secured in either a temporary locker or the permanent evidence area.
MR. LALLY: And, as far as when it's taken into custody and put into a bag, what is sort of the protocol or the policies with regard to how that bag is marked or what is done with that bag once you have the item contained therein?
MR. TULLY: There is certain pieces of information that will typically go on the bag: The name of the person who is picking the evidence up and putting it in the bag, the date and time, location, a brief description of the evidence contained in the bag. It will then be taped and initials will be placed on the tape to memorialize who did the taping and the date on which the taping occurred.
MR. LALLY: And, as far as the supervisor as far as evidence is concerned, you mentioned that there are some evidence officers who are assistants to you as the actual evidence officer?
MR. TULLY: Yes.
MR. LALLY: And, at this time in January 29th, 2022, who were those evidence officers within your unit?
MR. TULLY: Relative to the homicide section, it was Trooper Jeff Kotkowski and Trooper David DiCicco.
MR. LALLY: Now, with respect to the evidence storage at your office, can you explain to the jury sort of how that is managed, where it is and how items are checked into evidence once they are seized?
MR. TULLY: We have an evidence tracking system. So, as evidence comes in, we place it into the system. A label will be created and placed on the outside with the case number and an item number specific to that bag. It will be placed into the evidence room which is locked in two different methods and has an alarm code pad. And you need your I.D. pass to swipe in order to enter. And only certain members of the unit have access and know the code to the alarm, me obviously would be one and the two assistant evidence officers. And that is subject to inspection by the state police frequently.
MR. LALLY: And correct me if I'm wrong, but at this time it's essentially yourself, Trooper DiCicco and Trooper Kotkowski who had access to that evidence storage area?
MR. TULLY: Yes.
MR. LALLY: Now, with respect to the remainder of the troopers within your unit, would they have access to that same evidence storage area?
MR. TULLY: No.
MR. LALLY: Now, with respect to your unit at this time in late January of 2022, how many troopers were in your unit or under your supervision in the detective unit at that time?
MR. TULLY: There were 13 under my supervision for the unit as a whole. Specific to the homicide section, there were four troopers and one sergeant.
MR. LALLY: And that number as far as four troopers and one sergeant, is that sort of a typical number, a low number, high number?
MR. TULLY: Historically, for Norfolk, that was a low number. We have since had more transfers come into the unit.
MR. LALLY: And how many do you supervise within the homicide unit at this point?
MR. TULLY: One sergeant and seven troopers.
MR. LALLY: Now, with respect to the evidence storage area, is there sort of a temporary versus a permanent storage area contained within that locked and coded storage area?
MR. TULLY: Yes.
MR. LALLY: And can you describe sort of the difference between the two and how things are managed by either you or your assistants with regard to evidence within the locked storage area?
MR. TULLY: So because only essentially three people have access to the permanent storage area, if a member collects evidence and brings it back to the office and doesn't have access to the main storage area, we have another temporary storage area that is allowed by policy where they can then secure the evidence. The next available time the person who has access to the main room will come in and transport that piece of evidence from the temporary area to the permanent area.
MR. LALLY: And as far as that transportation or transmission from the temporary area to the permanent area, what, if any, sort of documentation is generated in regard to that?
MR. TULLY: There is no notation from one location to the other as allowed by policy.
MR. LALLY: And, as far as when items are seized and when labels are sort of printed in relation to those items, is that always done sort of simultaneously as when the item comes in, or how is that typically done, timing- wise?
MR. TULLY: Well, the same with the label-printing system. So only the evidence officers had the ability to create the labels and put it into the system. So you need them to create the labels. So if a member comes in and doesn't have access to that system, places it in the temporary storage area at the next available opportunity for an evidence officer or assistant evidence officer to arrive, know that there is evidence there, process it and place a label on it and stick it in the permanent storage area.
MR. LALLY: Now, with respect to those items that you recovered from 34 Fairview Road, the roadway in front of it, where were those items located with respect to each other?
MR. TULLY: They were in total within a five-foot area. So if you're looking at the house, from right to left was how they were found. First was that first picture you displayed, which was the red piece of plastic. About three feet from that was the Nike sneaker. About one or two feet to the left of that was the clear plastic, and just next to that was another piece of red plastic along the curve of the road.
MR. LALLY: And, as far as those items that were recovered and bagged and placed into evidence on January 29th, did you have occasion to bring those items with you to court today?
MR. TULLY: Yes.
MR. LALLY: And, Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, I am presenting you with a bag. Lieutenant, first, just with reference to the item I've placed before you, do you recognize that?
MR. TULLY: Yes.
MR. LALLY: And what do you recognize that to be?
MR. TULLY: The bag that contains the left sneaker that was seized from 34 Fairview Road that day outside of the residence.
MR. LALLY: Your Honor, with the Court's permission, may the witness remove that item from the bag and display it for the jury?
JUDGE CANNONE: Yes.
(Witness complies.)
BY MR. LALLY:
MR. LALLY: Thank you, sir. If you could place that in the bag?
MR. LALLY: Your Honor, the Commonwealth would seek to introduce and admit as the next exhibit.
JUDGE CANNONE: Okay.
MR. JACKSON: No objection.
(Whereupon, bag containing sneaker was entered and marked Exhibit No. 569 in Evidence.)
COURT REPORTER: Exhibit 569.
JUDGE CANNONE: Thank you.
MR. LALLY: May I approach again, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, I'm handing you two separate bags. If you could view those and look up when you finish.
MR. TULLY: (Witness complies.)
MR. LALLY: Do you recognize each of those respective bags, sir?
MR. TULLY: Yes.
MR. LALLY: What do you recognize those to be?
MR. TULLY: The bags that contain the red and clear plastic pieces that were recovered from the roadway in front of 34 Fairview Road.
MR. LALLY: Sir, if you could, just with respect to each of those bags, read what is listed as the description on the outside of the bag to the jury?
MR. TULLY: The description on this first one is (as read), "Pieces of clear, hard plastic taillight cover, location 34 Fairview Road, Canton."
MR. LALLY: And the second, please?
MR. TULLY: The description is (as read), "Pieces of red hard plastic taillight cover, location 34 Fairview Road, Canton."
MR. LALLY: And, Your Honor, with the Court's permission, I would ask that the witness be allowed to open each of those bags and display the items for the jury.
JUDGE CANNONE: Okay.
BY MR. LALLY:
MR. LALLY: Sir, if I could ask you to start with the red plastic.
MR. TULLY: Okay. (Witness complies.)
MR. LALLY: Thank you, sir.
MR. LALLY: Your Honor, the Commonwealth would seek to introduce and admit those as the next exhibit.
JUDGE CANNONE: All right. Mr. Jackson, are they coming in?
MR. JACKSON: No objection, Your Honor. Thank you.
(Whereupon, bag containing two pieces of red plastic was entered and marked Exhibit 570 in Evidence.)
COURT REPORTER: Exhibit 5-7-0.
BY MR. LALLY:
MR. LALLY: Now, Lieutenant, before we get to the next item before you, if I could just ask a couple of questions in regard to the search. On January 29th, 2022, about what time is it that you arrived in the area of 34 Fairview?
MR. TULLY: About 5:30.
MR. LALLY: And had yourself or any members of your unit to your knowledge been at 34 Fairview at any point in time prior to your arrival there that day?
MR. TULLY: No.
MR. JACKSON: Objection.
JUDGE CANNONE: No. I'll allow it as to whether he knows. He said "no."
BY MR. LALLY:
MR. LALLY: And about how long was it that you were on scene at 34 Fairview that day?
MR. TULLY: About an hour.
MR. LALLY: Now, with respect to when these items were found, do you know approximately what time the first item was located by a member of the SERT team?
MR. TULLY: Yes.
MR. LALLY: And what time was that?
MR. TULLY: 5:45.
MR. LALLY: Now, with respect to at any point in time that you were on scene at 34 Fairview Road on January 29th, 2022, was either Trooper Proctor or Sergeant Bukhenik on scene at 34 Fairview while you were there?
MR. TULLY: No.
MR. LALLY: And, with respect to around that time, as their supervisor, were you aware of where they were or their location at that time?
MR. TULLY: Yes.
MR. LALLY: And where was that?
MR. TULLY: They were following a tow truck that was towing Ms. Read's vehicle from Dighton to Canton.
MR. LALLY: Now, with respect to the vehicle and/or the pieces of red and clear plastic that were found by the SERT team at 34 Fairview Road on January 29th, what, if any, conversation did you have with respect to Lieutenant O'Hara in regard to the vehicle and sort of the damage on the vehicle?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow that.
MR. TULLY: We wanted to know what we were looking for. Specifically, Lieutenant O'Hara wanted to know what are we looking for and what's the scope of the items we're looking for. So we had discussion about how much taillight we believed was missing from Ms. Read's vehicle so that as we go along, we would know if we had enough or we had it all, I should say.
MR. LALLY: And so with respect to that, what, if anything, were you able to share with Lieutenant O'Hara with respect to Ms. Read's vehicle at that particular time?
MR. TULLY: I didn't have much information because it was still on a tow truck or being loaded up to the Canton Police Department at that time. So I didn't have any actual knowledge about how much taillight we're looking for.
MR. LALLY: And, prior to you leaving from the scene at 34 Fairview Road along with the SERT team on that day of January 29th, even at that time did you know the full extent or how much taillight you were looking for at that time?
MR. TULLY: No.
MR. LALLY: Now, sir, if I could ask you just to --
MR. LALLY: With the Court's permission, Your Honor, may he remove the items from that second bag before him?
JUDGE CANNONE: Yes.
(Witness complies.)
BY MR. LALLY:
MR. LALLY: Now, Lieutenant, from the two items that you have before you in your hand, you had made reference to one of those clear pieces having some sort of stippling or raised surfaces on it; is that correct?
MR. TULLY: Yes.
MR. LALLY: And, if you could just with your fingers or just in some way delineate to the jury where you observed that to be?
MR. TULLY: So you could see that as you looked through it. You can see almost bubbling of it. As you run your finger along, you can feel indentations along there, as well as the ridges that are along the top end here that appear on both pieces.
MR. LALLY: And, Lieutenant, if you could, you can place those items back in the bag.
MR. TULLY: (Witness complies.)
MR. LALLY: And, Your Honor, the Commonwealth would seek to introduce and admit as the next exhibit.
MR. JACKSON: No objection.
(Whereupon, bag containing two pieces of clear plastic was entered and marked Exhibit No. 571 in Evidence.)
COURT REPORTER: Exhibit 571.
JUDGE CANNONE: Thank you.
MR. LALLY: Your Honor, given the time and given where I am -- why don't you come to sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: All right. So --
MR. LALLY: I'm very happy to keep going, but I just noticed that it was 3:56 and I'm about to sort of switch topics with the lieutenant.
JUDGE CANNONE: All right. How much longer do you have with him?
MR. LALLY: About 45 minutes, an hour. Something like that.
JUDGE CANNONE: Okay. And then you've got your DNA people tomorrow?
MR. LALLY: That's right. And before I can really get to the Bode people, I need to get Mr. Porto done and Sergeant Gallerani done.
JUDGE CANNONE: Okay.
MR. JACKSON: Can I inquire of the order? So it's going to be we finish Tully and then --
MR. LALLY: No. I can't --
JUDGE CANNONE: Let me let the jury go.
MR. LALLY: Sure.
MR. JACKSON: Sure.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: All right. Jurors, I am going to, rather than while we keep talking, I'm going to go ahead and send you home. Please do not discuss this case with anyone. Don't do any independent research or investigation into the case. If you happen to see, hear, read anything about the case, please let us know. We'll see you tomorrow. So tomorrow will be 9:00 to 4:00, 9:00 to 4:30. We hope to get started right away. Okay? And, Detective Lieutenant, I am just going to ask you to file out after the jury.
MR. TULLY: Yes.
(Whereupon, the jury is escorted from the courtroom and excused for the day.)
(Whereupon, the sidebar conference continued as follows:)
JUDGE CANNONE: So you wanted to know the order?
MR. JACKSON: Yes, ma'am.
MR. LALLY: If there is no objection to it, I think my preference would be just to get the Bode people out of here. If we finish with Lieutenant Tully, then do Sergeant Gallerani, just because I have to do him before we do the two Bode people. And then I can go to Mr. Porto sort of out of turn.
JUDGE CANNONE: Who is the last one?
MR. LALLY: Andre Porto. So he is the one who does all the DNA for the state police lab.
JUDGE CANNONE: Okay.
MR. LALLY: Which has some connection to --
JUDGE CANNONE: Is it going to make any sense if he goes after you hear from the DNA experts from Bode?
MR. LALLY: Well, so he does a bunch of other items. The only connection is that he also does the testing on the taillight and the initial testing on the hair, which is why everything goes to Bode in the first place. So I would prefer to do Mr. Porto first, but I'd also prefer not to have Mr. Bradford and his chart have to spend an extra day that they don't need to.
MR. JACKSON: I don't think we care. They're not my witnesses, but I don't --
MR. YANNETTI: We don't care. That's fine.
MR. JACKSON: We were sort of expecting them in a lump, just not this lump. So that's fine.
JUDGE CANNONE: All right. Sometimes it's helpful for the jury to let them know if somebody is being taken out of order because things aren't naturally going to make sense.
MR. LALLY: I would ask for some kind of --
JUDGE CANNONE: So write up a little something that you'd like me to say and let's just play it out and see how it goes.
MR. LALLY: Okay.
JUDGE CANNONE: So tomorrow we'll be hopefully right up to 4:30 with a very short lunch and to get started right at 9:00 o'clock.
MR. JACKSON: May I have permission to look -- if I can ask Mr. McDermott to look in the -- I think it's 570, was the bag that was just opened. I'd like to look in it before we leave.
JUDGE CANNONE: Sure. I'll stay here. Is there something you might want to put on the record?
MR. JACKSON: No. I don't think so. It's just for my edification. I just want to look at it. I just didn't want to take possession of it with the Court on the bench and --
JUDGE CANNONE: Yes. That's good. Okay. We'll see you tomorrow.
MR. LALLY: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded and the Court adjourned.)