Commonwealth v. Read — Trial ArchiveMichael Lank — Direct
460 linesMR. LALLY: Yes, Your Honor. The Commonwealth calls Sergeant Michael Lank to the stand.
JUDGE CANNONE: All right. Not yet. I'll see counsel at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So we still need to deal with this. I assumed you'd want to know before you did your direct.
MR. LALLY: Yes.
JUDGE CANNONE: You were saying before you had the other officer available yesterday to go. Can you call him or do I have to give this jury another break? And, Mr. Yannetti --
MR. YANNETTI: Yes, Your Honor?
JUDGE CANNONE: -- I expect better from you than that.
MR. YANNETTI: I think that is admissible, Your Honor.
JUDGE CANNONE: I know you might, but it's not.
MR. YANNETTI: Okay.
JUDGE CANNONE: Especially we haven't had this conversation yet today about what I was admitting regarding that incident. So I'm just telling you that. Do you want to call the other witness or do you want me to give the jury another break?
MR. LALLY: Yes. I'm sorry.
MS. MCLAUGHLIN: You Honor, I'd just ask if I could step out to see if he's here?
JUDGE CANNONE: Okay.
MS. MCLAUGHLIN: I could step out of the courtroom and --
JUDGE CANNONE: Sure.
(Whereupon, Ms. McLaughlin steps from the sidebar and exits the courtroom.)
JUDGE CANNONE: Mr. Jackson, do you want to tell me exactly -- do you want to do this now here while the jury is waiting?
MR. JACKSON: Sure.
JUDGE CANNONE: Let me just grab my -- I'm going to send the jurors out for five minutes.
MR. JACKSON: All right.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Jurors, I'm sorry to do this to you. We are going to send you back out for about -- why don't we take the morning break. Okay? So 15 minutes.
(Whereupon, the jury is escorted from the courtroom for a brief recess.)
JUDGE CANNONE: So I figure we should do this in open court. I know it's important to the defendant's case. So tell me exactly, based on the voir dire yesterday, exactly what you hope to get into?
MR. JACKSON: Thank you, Your Honor. With regard to the voir dire yesterday, my intention is to closely mirror my questioning of Sergeant Lank with my questioning of him on voir dire; in other words, the fact of the fight, the fact of Chris Albert's involvement in the fight, the fact of his getting involved in the fight, called officers to assist him, the specifics of the allegations of the Lopilato brothers as to his conduct, what they alleged he did, the part that he took in the fight, their subsequent release from the scene, going back into the Canton Police Department to file or lodge a complaint, the fact that they were turned away for the complaint. There were subsequent police reports filed, and --
JUDGE CANNONE: I don't have those, right? You didn't send them to me.
MR. JACKSON: We got those. We got those last night.
JUDGE CANNONE: Okay. It's too late for the police reports, but go ahead and finish what you have to say.
MR. JACKSON: Right. Just so the Court knows, as the Court requested, we provided those to the judicial assistant last night.
JUDGE CANNONE: Who is the judicial assistant?
MR. JACKSON: Ken.
COURT CLERK: Is Lopilato's?
MR. JACKSON: Lopilato's, yes.
JUDGE CANNONE: Go ahead from that, after the police report.
MR. JACKSON: So basically, Your Honor, the -- and I don't have any interest in introducing the police report. I just need the timing. In other words, there was the fight, the complaint. The police reports were filed after the complaint. And then they were charged after the police reports. And then the subsequent resolution of the matter.
JUDGE CANNONE: So what do you mean by subsequent resolution?
MR. JACKSON: They were adjudicated not guilty. And, ultimately, the subsequent witness intimidation request by Sergeant Lank was thrown out by the D.A. With regard to what was brought up by Mr. Lally yesterday, I intend to include and list it in my questioning of Sergeant Lank the issue concerning Tim Albert and the resolution of that issue --
JUDGE CANNONE: Well, Mr. Yannetti just did that.
MR. JACKSON: Well, he didn't because the Court struck it.
JUDGE CANNONE: It should not have been done.
MR. JACKSON: Well, Your Honor --
JUDGE CANNONE: Go ahead.
MR. JACKSON: -- respectfully, the Commonwealth left the jurors with a misimpression intentionally. His last question was "and he was charged." That's true. He was charged. And then those charges were dismissed subsequent thereto.
JUDGE CANNONE: But this was -- it wasn't objected to, right? Mr. Lally's question wasn't objected to. All right. So is that the end of what you intend to get into?
MR. JACKSON: Yes.
JUDGE CANNONE: All right. Mr. Lally, do you want to -- you're objecting to all of this?
MR. LALLY: Yes, Your Honor.
JUDGE CANNONE: Okay. Do you want to be heard specifically on anything?
MR. LALLY: No, Your Honor.
JUDGE CANNONE: All right. So what I'm going to allow you to get in is the relationship of Sergeant Lank with the Alberts. But keep in mind, Mr. Jackson, the Alberts are not all one entity.
MR. JACKSON: Understood.
JUDGE CANNONE: So you must do it individually. And simply because the witness had a relationship with Chris Albert doesn't mean that it has any bearing on favoritism or bias to Brian Albert or to Tim Albert. So you have to do them individually. I'll give you some leeway on the incident, itself. But keep in mind the particulars of the fight isn't really what matters here. It's the fact of the fight and the intervening of Sergeant Lank on behalf of Chris Albert as it's relevant to bias or favoritism. So if there are objections that you get beyond, you may be stopped. You can get when and where it happened, that it happened outside a bar where the witness had been drinking. He did not acknowledge your drinking buddy's comments.
So you're not to specifically say that where you just said you're going to outline what you did yesterday and that this occurred in Canton, the role, if any, he had and handcuffing or having the Lopilatos put in custody and the fact that Mark Lopilato went to the Canton Police Department to file a report. What you cannot get into is the Mobil gas station incident, because I didn't hear anything yesterday that the conduct of Sergeant Lank had anything to do with the Alberts. I'm not convinced that it wasn't merely self-interest on his part. So that's out. That was 22 years ago. So you're not getting into the federal investigation, that he was sued. I'm not letting you get into the not guilty because it's speculative. Who knows why he was found not guilty, why they were found not guilty. You cannot get into that. There are all kinds of reasons people can be found not guilty. Whether I allow more depends on the testimony, the direct and the cross. So you are to go no further than that without leave of the Court. So the Commonwealth can then get into the animosity between the witness, Sergeant Lank, and Brian Albert because of the arrest of Tim Albert. But, Mr. Lally, if you open the door to something further, I need to be seen at sidebar before anybody can come get into that. So, Mr. Jackson, you did this in 10 minutes yesterday. I don't expect you to take two hours to do this. Okay? And, just as an aside again, let's not waste the jury's time with repetitive testimony.
MR. JACKSON: I don't intend to, Your Honor. I think I understand the Court's -- the parameters. The one thing I didn't hear the Court say but I think it was implied, but I want to make sure I'm clear, I can get into the fact that there was a complaint sought and then there were subsequent police reports filed and then the subsequent citation or summons.
JUDGE CANNONE: I didn't hear anything yesterday about -- well, the police reports. I haven't seen them, so that the complaint was sought and that subsequent to that, they were summonsed and had to go to court.
MR. JACKSON: And the dates of the police reports that were filed?
JUDGE CANNONE: You can say the dates without saying the police reports. So they went into the station to file a complaint. They were told they couldn't file a complaint on those two days, right?
MR. JACKSON: Correct.
JUDGE CANNONE: And then the -- so the witness did testify that he filed a report but it was after he had told his sergeant the night before of this incident, and the sergeant said, you don't have to file a report until you come back, or something like that.
MR. JACKSON: So I'll just ask were the reports dated after the initial complaint was requested. I can leave it at that.
JUDGE CANNONE: Okay.
MR. JACKSON: Okay.
JUDGE CANNONE: I'll give you all a five-minute break, and then we have to get going.
(Whereupon, there was a brief recess taken.)
(Court resumes at 10:36 p.m.)
(Defendant present. Jury present.)
JUDGE CANNONE: Mr. Jackson, you'll just alert me before you begin that line of questioning, because I have an instruction.
MR. JACKSON: Of course.
JUDGE CANNONE: All right. Mr. Lally, your next witness, please.
MR. LALLY: Yes, Your Honor. The Commonwealth calls Sergeant Michael Lank to the stand.
Whereupon, MICHAEL LANK having been first duly sworn, was examined and testified 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 morning, sir.
MR. LALLY: Could you please state your name and spell your last name for the jury?
MR. LALLY: And how are you employed, sir?
MR. LALLY: And how long in total have you been a member of the Canton Police?
MR. LALLY: And how long have you held the rank of lieutenant with the Canton Police?
MR. LALLY: Now, prior to -- well, let me ask you first, with reference to your responsibilities as a lieutenant, if you could explain to the jury just in general terms what are your duties and responsibilities as a lieutenant?
MR. LALLY: And, prior to working as a lieutenant, what was your role with the Canton Police before that?
MR. LALLY: And how long were you a detective sergeant?
MR. LALLY: And, during that time frame as a detective sergeant, what were your duties and responsibilities with regard to the Canton Police at that point?
MR. LANK: To oversee the detective bureau, ensure that all reports were issued to respective detectives and completed.
MR. LALLY: Now, you're also familiar with the role within the Canton Police of a sort of shift sergeant; is that correct?
MR. LALLY: And if you could explain to the jury sort of what are the differences between what a shift sergeant does and what a detective sergeant does.
MR. LANK: A shift sergeant's primary responsibility is to run the daily shift, give out sectors to each of the cars and dispatch cruisers to appropriate areas and so forth.
MR. LALLY: If I could turn your attention to the morning of January 29th, 2022, at some point after 6:00 a.m., did you receive a call in regard to a dispatch that your department had received?
MR. LALLY: And who, if anyone, called you around that time?
MR. LALLY: Do you know approximately what time Sergeant Goode called you?
MR. LALLY: And, with reference to that call, the initial call from Sergeant Goode, what, if any, information did he relay to you at that time?
MR. LANK: Sergeant Goode stated that there was a gentleman found in the snow at 34 Fairview Road and he was in very grave condition. And he brought it to my attention that he was also a Boston police officer.
MR. LALLY: And, subsequent to that through the course of your investigative work on this case, did you learn who that unresponsive male was?
MR. LALLY: And who did you learn him to be?
MR. LALLY: Upon receiving that call, where did you go?
MR. LALLY: And, if you know, about what time would you estimate that you arrived in the area of 34 Fairview Road?
MR. LALLY: And, upon your arrival, who, if anyone else, from your department was there prior to?
MR. LALLY: And, when you arrived beyond sort of the other officers from your department, what, if any, other activity or what, if any, other persons did you observe on scene?
MR. LANK: When I arrived, I observed that the ambulance was still there. There was multiple EMTs, and I observed some witnesses, also.
MR. LALLY: And, with respect to the ambulance, it's your understanding Mr. O'Keefe was in that ambulance?
MR. LALLY: And did you ever see Mr. O'Keefe on that morning?
MR. LALLY: And, at some point, the other officers who preceded your arrival, did they direct your attention to where Mr. O'Keefe was found when they first arrived?
MR. LALLY: And where was that sort of in relation to the property, if you recall?
MR. LANK: If you're looking at 34 Fairview Road, it was on the left side of the property, about eight feet from the road.
MR. LALLY: And, in that sort of general area, what, if any, sort of landmarks or other sort of items in that area of the front yard did you observe?
MR. LALLY: And, upon your arrival on scene, who was the first person that you spoke to?
MR. LALLY: And you had some conversation with him; is that correct?
MR. LALLY: And then following talking to Sergeant Goode, who, if anyone else, did you speak to on the scene?
MR. LALLY: And where was it in relation to the scene that you first spoke to Jennifer McCabe?
MR. LANK: I believe I spoke to Jennifer McCabe right in front of marked Cruiser 683, which was assigned to Officer Saraf.
MR. LALLY: And then about how long a conversation was that initially with Ms. McCabe?
MR. LALLY: And, in addition to Ms. McCabe, what, if any, other sort of civilians did you observe in that area around that time?
MR. LANK: I observed Kerry Roberts. And I don't recall seeing anybody else at the scene while I was focused on Ms. McCabe.
MR. LALLY: Now, with respect to Jennifer McCabe -- strike that. So after you spoke with Ms. McCabe for eight or nine minutes, then who, if anyone else, did you speak to at that time?
MR. LALLY: And what is the CPAC unit?
MR. LANK: The CPAC unit is the investigative division for the Norfolk County District Attorney's Office.
MR. LALLY: And why did you contact them?
MR. LANK: Because I was made aware at some point that it did not appear that Mr. O'Keefe was going to survive, and I wanted them to be aware of the situation.
MR. LALLY: And did they respond at that time?
MR. LALLY: Now, with reference to -- is that sort of a typical protocol or what, if any, sort of typical procedure would you have responding to a scene of this nature?
MR. LANK: Yes. Any sort of scene where it appears that the person is not going to survive, we would contact state police CPAC unit.
MR. LALLY: And why is that, sir?
MR. LALLY: So they have jurisdiction over all unattended deaths; is that correct?
MR. LALLY: As well as homicides and things of that nature?
MR. LALLY: Now, once you -- do you recall who, if anyone, you spoke to on that first call or notation to CPAC?
MR. LALLY: And what, if any, subsequent calls did you have with regard to CPAC while you were on scene that morning?
MR. LALLY: And, from your conversation with Trooper Proctor, what was your understanding as far as their response to the scene at that time?
MR. LANK: So at that point in time, Trooper Proctor informed me that they would not be responding.
MR. LALLY: I'm sorry. I don't know what that noise is, but if I could just ask you to repeat your last response because, frankly, I didn't get it.
MR. LANK: In speaking to Trooper Proctor, he advised me at that point that they would not be responding.
MR. LALLY: And did he inform you as to why not at that time?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
BY MR. LALLY:
MR. LALLY: Now, when you arrived on scene, what, if anything, did you note as far as the weather conditions?
MR. LANK: The weather conditions were extremely poor. There were high winds, heavy snow and freezing temperatures.
MR. LALLY: Now, you mentioned when you first arrived on scene, Mr. O'Keefe is in the back of that ambulance; is that correct?
MR. LALLY: And when was it that the ambulance left in relation to when you arrived?
MR. LALLY: Now, as far as injuries to Mr. O'Keefe, who, if anyone, relayed any information in regard to that?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
BY MR. LALLY:
MR. LALLY: Now, as far as following your conversation with Ms. McCabe, what was sort of the next steps that you took on scene?
MR. LANK: After I spoke to Ms. McCabe, I advised her that we were going to need to speak with the homeowners. She said that they were probably sleeping. I advised her that we were going to need to speak with them. And that's when I placed the call to the CPAC unit.
MR. LALLY: And, prior to that when you were on scene, had you seen anyone come in or go out at the residence at 34 Fairview Road?
MR. LALLY: And, as far as sort of the other houses on the street, what, if any, activity did you observe with reference to any residents of those homes going in and coming out of their home?
MR. LALLY: Now, following your initial call to CPAC in conversation with Trooper Proctor, what is it that you did next?
MR. LANK: Once that call was complete, Sergeant Goode and I observed that there was now a light on in the house of 34 Fairview, and we made the decision to then go in and speak with the homeowners.
MR. LALLY: And how was it that you sort of proceeded up to the home?
MR. LANK: I believe -- I don't recall if we used -- I believe we used the driveway, but I'm not 100 percent sure.
MR. LALLY: And, when you came into the home, do you recall which door you used to enter the home?
MR. LALLY: And, when you entered in through the main door, what -- if you could, describe to the jury sort of what you observed as far as what was before you from the layout perspective?
MR. LANK: There was a staircase right in front of us and to the right it entered into like what appeared to be like a dining area. And who, if anyone, did you speak with inside the home that morning? A Brian Albert and Nicole Albert.
MR. LALLY: And what, if any, relationship to the home did you determine based on your conversation with them?
MR. LALLY: Now, Brian Albert. Is that someone you knew prior to January 29th of 2022?
MR. LALLY: And how did you know him?
MR. LALLY: And did you know some of the other Albert brothers?
MR. LALLY: Let me ask you this, Sergeant. Where did you grow up?
MR. LALLY: And how long have you lived in Canton?
MR. LALLY: So essentially since you were five years old, you lived in the town, correct?
MR. LALLY: You work in the town, correct?
MR. LALLY: Do you have children?
MR. LALLY: Any of them play sports?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Move to strike.
JUDGE CANNONE: I'll strike that.
BY MR. LALLY:
MR. LALLY: What, if any, other sort of -- other than living and working in the town, what, if anything, else is it that you do around the town of Canton?
MR. LALLY: And have you done -- how long have you done that for?
MR. LALLY: And how would you describe your relationship with Brian Alford prior to that January 29th, 2022?
MR. LALLY: Are you friends? Do you socialize?
MR. LALLY: Now, in addition to Brian Albert and Nicole Albert, who, if anyone, else -- where did you speak to them within the home?
MR. LALLY: And how would you describe their demeanor when you were speaking to them?
MR. LANK: They appeared, especially Mr. Albert appeared, disheveled. It looked like he had just woken up.
MR. LALLY: And about how long a conversation was it between Brian Albert and Nicole Albert that initial time?
MR. LALLY: And, beyond that, who, if anyone, else did you see within the home besides yourself, Sergeant Goode and Mr. and Mrs. Albert?
MR. LALLY: No one else at that time?
MR. LALLY: Are you familiar with a gentleman named Brian Higgins?
MR. LALLY: And how are you familiar with him?
MR. LANK: I met Brian when he was stationed at our police station. I don't know how many years ago it was, but he was assigned to our building years ago. That's how I met him.
MR. LALLY: And assigned in what capacity? What I mean by that is what did he do for work?
MR. LALLY: And did you see Mr. Higgins at any point in time during the time that you were at Fairview Road that morning?
MR. LALLY: So sometime after; is that correct?
MR. LALLY: Okay. And when about was that?
MR. LALLY: We will get to that in a moment. But, after your conversation with Brian Albert and Nicole Albert inside the house, what is it that you did then?
MR. LALLY: Sure. After talking to the homeowners, what was your next step on scene that day? What did you do next?
MR. LANK: After speaking with the family, by that point, Lieutenant Gallagher was on scene and spoke with Lieutenant Gallagher as to what we were going to do next as far as the scene, itself.
MR. LALLY: And, to that end, what, if anything, did you or the other officers do with regard to sort of security of the scene at that time?
MR. LANK: So we had put up some crime scene tape to try to protect the scene, but it was a futile effort because of the wind. But there were marked patrol cars in front of the yard at all times. So the scene was fairly secure at all times.
MR. LALLY: And then with relation to the scene or the area that you were directed or your attention was directed to as to where Mr. O'Keefe had been found, what, if anything, did you do with reference to that area?
MR. LANK: I stood by and observed while Lieutenant Gallagher used a leaf blower to try to clear the top layers of snow off the scene.
MR. LALLY: And, at some point in time -- well, that particular process, was that memorialized in any way?
MR. LALLY: Okay. And how was it done so?
MR. LALLY: I'm sorry. Beyond that. Were there any sort of photos or video that were taken of that leaf blower process?
MR. LANK: Yes. Sergeant Goode was able to take video while Lieutenant Gallagher used the leaf blower.
MR. LALLY: And you've seen that video; is that correct?
MR. LALLY: And what's contained in that video, is that a fair and accurate betrayal of sort of what happened on scene that morning?
MR. LALLY: Now, in addition to -- well, let me ask you this: As far as the leaf blower was concerned, what was sort of the purpose of that or what was the thinking behind that?
MR. LANK: The purpose behind the leaf blower was just to take the top layers of the snow off to reveal what was underneath and try to preserve any potential evidence.
MR. LALLY: And, upon employing that, what, if anything, did you then observe in that area of the front lawn?
MR. LANK: Ultimately, we were able to see what appeared to be blood drops in the snow as well as a drinking glass, cocktail glass.
MR. LALLY: Now, in addition to the video that was taken with regard to the leaf-blowing process or the use of the leaf blower, were there photos that were taken of the scene, as well?
MR. LALLY: Ms. Gilman, if I could have Exhibit No. 27?
BY MR. LALLY:
MR. LALLY: Sergeant Lank, what's up on the screen that's been previously marked as Exhibit 27, do you recognize that?
MR. LALLY: And what do you recognize it to be, sir?
MR. LALLY: May I approach the witness, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: I am handing you a laser pointer. Basically, it's very simple. Just press on that button and point in the direction.
MR. LALLY: Thank you, sir. So, Lieutenant Lank, using that laser pointer, if you could draw the jury's attention, what, if anything of significance, you observe in this photograph in relation to what you saw on the scene that day?
MR. LANK: So it's fair to see blood drops here in the snow that had been revealed by wiping away the top layer as well as the glass protruding from the snow.
MR. LALLY: Thank you, sir.
MR. LALLY: Ms. Gilman, you can take that down.
BY MR. LALLY:
MR. LALLY: Now, at any point in time when you were on scene, did you have any contact or interaction with a person named Karen Read?
MR. LALLY: Did you see her on scene at all that day?
MR. LANK: I don't recall seeing her. I believe she was there while I was there, but I never spoke to her.
MR. LALLY: Now, following your initial conversation inside the home of 34 Fairview with Brian Albert, Nicole Albert and speaking to Jennifer McCabe outside, who, if anyone, else did you speak with that arrived on scene that morning?
MR. LALLY: And when was it that Matthew McCabe arrived in relation to sort of your arrival and when you spoke to the other people?
MR. LANK: Matthew McCabe arrived just a couple of minutes after I had walked out of the house the first time.
MR. LALLY: And so when he arrived, where did you go?
MR. LALLY: And about how long a conversation was it that you were in the house when you were speaking to Mr. McCabe?
MR. LALLY: And over the course of that morning, about how many times did you go into the residence at 34 Fairview Road?
MR. LALLY: Anyone ever tell you that you couldn't go into the home or that stopped you at the doorway or anything like that?
MR. LALLY: And, with reference to inside of the home, what, if any, observations did you make of sort of how the home was situated, anything disheveled or anything like that?
MR. LALLY: And just if you know, what, if any, relationship does Matthew McCabe have to Jennifer McCabe?
MR. LALLY: Now, turning back to what was just up on the screen in Exhibit 27, with regard to that, those items that you observed in the yards, in the front lawn, that day, what, if anything, did you or the other officers do with respect to those items?
MR. LANK: The drinking glass was secured into an evidence bag and the blood drops were secured into six Solo cups.
MR. LALLY: And why were they secured into six Solo cups?
MR. LANK: We did the best that we could with the situation with the weather and deteriorating situation. Lieutenant Gallagher was able to obtain the Solo cups from Lieutenant Kelleher's house, which was diagonally across the street.
MR. LALLY: Now, with respect to the CPAC unit or the phone call that you made to the state police, beyond sort of the jurisdiction of them having over unattended deaths and things of that nature, what, if any, other assets does the state police have at their disposal with regard to crime scene that your department does not?
MR. LALLY: Now, with respect to those items once they were secured, just in reference to the Solo cups, beyond sort of just putting them into Solo cups, what, if anything, else did you or the other officers do to secure those items specifically?
MR. LALLY: And, following them being secured, where did they go from there?
MR. LANK: They were then placed into my truck at that point, my police truck that I was using that day, and ultimately transported back to the police station.
MR. LALLY: And transported back to the police station by whom?
MR. LALLY: And, once you were back at the police station with those items, what, if anything, did you do with them at that time?
MR. LANK: They were secured at the temporary evidence in the refrigerated unit for the Solo cups. And the glass was secured into temporary evidence.
MR. LALLY: And so when you say "temporary evidence," why were they secured into temporary evidence?
MR. LANK: They were secured into temporary evidence so that they could ultimately be turned over to the state police.
MR. LALLY: And, as far as when you secure something into temporary evidence, just in general terms, what is it that you do with that item to secure it or label it or anything else?
MR. LANK: So it's assigned a property number, and we would print out a property label. And then it's assigned the OF number, which is the report.
MR. LALLY: So "OF" stands for offense; is that correct?
MR. LALLY: And so each report that you generate has a specific number with an "OF" following it?
MR. LALLY: And then that number is associated with the evidence if you secure it, correct?
MR. LALLY: Now, with reference to that evidence, whether it's temporary evidence or otherwise, what, if any, restrictions are there with regard to access to those items within your department?
MR. LALLY: But to officers from your department, correct?
MR. LALLY: And following that, are you aware or what, if anything, are you aware of of what happened with those items after you secured them into temporary evidence?
MR. LALLY: Your Honor, may I approach the witness?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: I'm handing you up a box. Do you recognize that?
MR. LALLY: And what do you recognize that to be?
MR. LALLY: And is that a box that you've seen earlier today?
MR. LALLY: Okay. And, with reference to what's contained within the box, have you seen that this morning, as well?
MR. LALLY: Your Honor, with the Court's permission, I would ask that the witness be allowed to take what's in the box out of the box.
JUDGE CANNONE: Okay.
BY MR. LALLY:
MR. LALLY: Sir, just for the record, you have some evidence gloves with you in court today; is that correct?
MR. LALLY: I'm sorry, sir. Before you just go into that, just with reference to the bag that you have before you, what, if any, markings are on that that relate to sort of your case, your case number with the Canton Police?
MR. LANK: So it is -- there is a case number assigned to us, 22-87OF. And there is a property number, 22-18PR. And it's listed as broken drinking glass.
MR. LALLY: And have you seen the item contained within that bag earlier this morning, as well?
MR. LALLY: And what you observe within that bag, is that the piece of the cocktail glass that you observed on the front yard area of 34 Fairview Road on January 29th, 2022?
MR. LALLY: Your Honor, with the Court's permission, I would ask that the witness be allowed to take it out of the bag and display it to the jury.
JUDGE CANNONE: Okay.
(Whereupon, the witness complies.)
MR. LALLY: Thank you, sir. You can place it back in the bag at this time. May I approach the witness, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Your Honor, the Commonwealth would seek to introduce this as the next exhibit.
JUDGE CANNONE: Okay. Yes.
(Whereupon, box containing broken glass in bag was entered and marked Exhibit No. 45 in Evidence.)
COURT REPORTER: Exhibit 45.
BY MR. LALLY:
MR. LALLY: Now, Lieutenant Lank, once you were back at the police station, what, if any, call did you receive from anyone in regard to what had -- who, if anyone, called you once you were back at the station?
MR. LALLY: And where did you go following that phone call with Jennifer McCabe?
MR. LALLY: So this is now the third time that you've gone back and gone inside the residence at 34 Fairview Road; is that correct?
MR. LALLY: And who, if anyone, did you speak with along with yourself and Lieutenant Gallagher once you returned there that morning?
MR. LALLY: And about how long a period of conversation was that second conversation that you had with Ms. McCabe?
MR. LALLY: And then, following that, where did you go from there?
MR. LALLY: Now, if I could turn your attention to February 4th of 2022, were you working on that day? was.
MR. LALLY: And in the same capacity that you had described earlier?
MR. LALLY: And, at some point -- well, at approximately 8:50 a.m. or so, who, if anyone, called you on that day?
MR. LALLY: And what, if anything, or where did he direct you to go during the course of that conversation?
MR. LANK: Lieutenant Gallagher directed me to go back to 34 Fairview Road and meet with Chief Berkowitz as he had possibly discovered more evidence.
MR. LALLY: And, in the time between January 29th and February 4th, had you gone back to 34 Fairview Road at any point?
MR. LALLY: Now, between that time of January 29th, 2022 and February 4th of 2022, what, if anything, occurred in regard to the weather in between those dates?
MR. LALLY: And increased, if you know, approximately how much?
MR. LALLY: So well above freezing; is that correct?
MR. LALLY: And, with regard to the snowfall that had come from the 28th and into the 29th, what, if anything -- just in general, had you -- well, not in general. Specifically to 34 Fairview Road, what, if anything, did you observe between the snow that you observed there on the 29th and the snow that you observed there on February 4?
MR. LALLY: And, when you arrived at 34 Fairview Road on February 4th, what, if anything, did you observe and where did you observe it?
MR. LANK: Chief Berkowitz brought my attention to a piece of red glass that was about six to eight feet off the -- into the yard.
MR. LALLY: Now, before we get to that, as far as when you responded, who, if anyone, else from your department responded along with you?
MR. LALLY: The pieces of plastic that you observed, where were they in relation to where you had observed or where you had been directed to that Mr. O'Keefe had been found on January 29th?
MR. LALLY: Now, with respect to the pieces of plastic that you observed, what, if anything, did you do to memorialize where they were?
MR. LALLY: And did you or anyone in your presence touch, manipulate or move those pieces of plastic in any way?
MR. LALLY: And, at some point after you arrived on scene, who, if anyone, did you contact in regard to securing those items?
MR. LALLY: And, if you know, about how much time elapsed between the time that you contacted CPAC and the time that Trooper Bukhenik arrived on scene?
MR. LALLY: And, when Trooper Bukhenik arrived on scene, what, if anything, did you observe him to do with those pieces of plastic that you directed his attention to?
MR. LALLY: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: I am showing you two photographs. I'd ask you just briefly to look them over and then look up when you're finished.
MR. LALLY: Do you recognize those, sir?
MR. LALLY: What do you recognize in those photographs?
MR. LANK: I recognize this to be the piece of plastic that Chief Berkowitz had observed on that morning.
MR. LALLY: And are those the photographs that you took that morning, as well; is that correct?
MR. LALLY: And what's contained in those photographs, is that a fair and accurate portrayal of what you observed on February 4th, 2022?
MR. LALLY: Your Honor, the Commonwealth seeks to introduce and admit as the next two exhibits.
JUDGE CANNONE: Okay.
(Whereupon, photograph was entered and marked Exhibit No. 46 in Evidence.)
(Whereupon, photograph was entered and marked Exhibit No. 47 in Evidence.)
COURT REPORTER: Exhibits 46 and 47.
MR. LALLY: And, Ms. Gilman, if I could have the first of those photographs up on the scene.
BY MR. LALLY:
MR. LALLY: And, Lieutenant Lank, do you recognize what's depicted up on the scene currently?
MR. LALLY: And this is sort of a further-out image of that piece of plastic you were talking about; is that correct?
MR. LALLY: And, using the laser pointer before you, if you could just draw the jury's attention to where in the photograph you observed that piece of plastic?
MR. LALLY: Ms. Gilman, the next photograph.
MR. LALLY: And, sir, do you again recognize what's up on the screen?
MR. LALLY: Thank you, sir.
MR. LALLY: Ms. Gilman, you can take those down. If I may have one moment, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: Nothing further, Your Honor.
JUDGE CANNONE: Okay. Mr. Jackson?
MR. JACKSON: Thank you, Your Honor. May we approach briefly?
JUDGE CANNONE: Sure.
(Whereupon, there was a sidebar conference as follows:)
COURT CLERK: I just wanted to let the Court know that we anticipate going into the relationship right off the bat. So if there is a instruction that the Court --
JUDGE CANNONE: With the whole incident right off the bat?
MR. JACKSON: Correct, and get that out of the way.
JUDGE CANNONE: All right. Thank you.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Jurors, so you're about to hear evidence of an event that happened in 2012. This evidence can be considered by you insofar as it demonstrates or relates to the credibility of this witness and the thoroughness of the investigation into this case for which the defendant is currently on trial before you folks. You may use this evidence to the extent that you find it credible in deciding whether there was any bias or favoritism on the part of the police in their investigation in this case.
MR. JACKSON: May I?
JUDGE CANNONE: Okay, Mr. Jackson. Yes.