Commonwealth v. Read — Trial ArchiveKevin O'Hara - Redirect/Recross
166 linesJUDGE CANNONE: Okay, Mr. Brennan.
MR. BRENNAN: Thank you. Sir, you mentioned that there were about five people not on your SERT team at some point arriving at Fairview Road or the area of it.
MR. O'HARA: Uh, yes, that's correct, sir.
MR. BRENNAN: Three of them were Mass State Police. You mentioned Tully and two of his colleagues.
MR. O'HARA: Uh, correct, sir.
MR. BRENNAN: Did you see anybody taking photographs of the items that you found?
MR. O'HARA: Uh, yes. Lieutenant Tully was taking photographs while we were there, sir.
MR. BRENNAN: And did you see somebody putting the items in bags?
MR. O'HARA: Uh, yes, they did, sir.
MR. BRENNAN: Was that one of the two people that were with Lieutenant Tully?
MR. O'HARA: Uh, yes, correct, sir.
MR. BRENNAN: And you mentioned there were two Canton police officers. Were they part of the search?
MR. O'HARA: Uh, they were not, sir. No.
MR. BRENNAN: Were they on the grid?
MR. O'HARA: They were not, sir.
MR. BRENNAN: Did you ever see them in the area on the grid?
MR. O'HARA: I did not. No, sir.
MR. BRENNAN: They were there. Were they involved in any way in the crowd?
MR. O'HARA: Uh, they weren't — the only people that ever came on scene other than us, and those local officers — at some point the media did arrive on scene.
MR. BRENNAN: When you say "on scene," is "on scene" different than "on the grid"?
MR. O'HARA: Uh, correct. Just in the general vicinity.
MR. BRENNAN: Sir, did you know what the Canton police officers were doing?
MR. O'HARA: I do not know, sir.
MR. BRENNAN: Did you ever see either of them come on your grid?
MR. O'HARA: They did not. No, sir.
MR. BRENNAN: Did you ever see anybody place or toss or throw anything onto your grid?
MR. JACKSON: Your honor.
JUDGE CANNONE: I'll allow it.
MR. BRENNAN: Did you ever see anybody place or toss or throw anything onto your grid?
MR. O'HARA: I did not. No, sir.
MR. BRENNAN: Did you ever see anybody intrude on the grid and leave an item?
MR. JACKSON: Your honor.
JUDGE CANNONE: Choose a different word.
MR. BRENNAN: Did you ever see anybody physically intrude upon your grid?
MR. O'HARA: Uh, no. No one did that.
MR. BRENNAN: Sir, you were asked about best practices — memorializing the person who was taking photographs.
JUDGE CANNONE: Hold on for a second. Slow down a little.
MR. BRENNAN: You mentioned best practices of memorializing items.
MR. O'HARA: Uh, yes, that's correct, sir.
MR. BRENNAN: Do you know if those photographs were time and date stamped?
MR. O'HARA: I believe they were, sir.
MR. BRENNAN: Is time and date stamping with photographs best practices in memorializing things?
MR. O'HARA: Uh, yes they are, sir.
MR. BRENNAN: Now, before you defined the grid and before you began that search, you knew other state police officers, didn't you?
MR. O'HARA: Uh, yes, I did.
MR. BRENNAN: Did you know a person by the name of Trooper Yuri Bukhenik?
MR. O'HARA: Uh, yes I do know him, sir.
MR. BRENNAN: Did you know somebody at the time known as Trooper Michael Proctor?
MR. O'HARA: Uh, yes I did know. I do know him, sir.
MR. BRENNAN: Were either Michael Proctor or Trooper Yuri Bukhenik at Fairview that night?
MR. O'HARA: Uh, no, they were not, sir.
MR. BRENNAN: Did you see them at any time from the point you got there at 4:56 p.m. until when you left?
MR. O'HARA: Uh, no. I did not see them there, sir.
MR. BRENNAN: You mentioned that somebody came out of a side door at 34 Fairview who had a hoodie on.
MR. O'HARA: Uh, yes, that's correct, sir.
MR. BRENNAN: How long were they outside for?
MR. O'HARA: Maybe 10 seconds, sir.
MR. BRENNAN: Did they at any time interfere with your search?
MR. O'HARA: No, they did not.
MR. BRENNAN: Did they at any time try to discourage or dissuade you from searching?
MR. JACKSON: Objection, your honor.
JUDGE CANNONE: Next question.
MR. BRENNAN: Also, did that person do anything to impede your search?
MR. O'HARA: No, he did not.
MR. BRENNAN: You were asked about your conversation with Lieutenant Tully. Yes, sir. And he mentioned — or you characterized — he was very satisfied that you had found everything you were going to locate at that time.
MR. O'HARA: That's correct, sir.
MR. BRENNAN: Did he ever suggest that he expected that you would not find anything else?
MR. O'HARA: No, he did not.
MR. BRENNAN: Did he ever suggest that there was no other trace evidence there?
MR. O'HARA: No, he did not.
MR. BRENNAN: Was there a discussion that he, or you, or other people may come back to search further at a different time?
MR. O'HARA: Uh, we offered to come back at a later date and, you know, he just accepted our offer, but we were never contacted to come back.
MR. BRENNAN: Sir, when you offered to come back, um, was that based on your assessment that it was a difficult area to search?
MR. O'HARA: Correct. Again, as we talked about, probability of detection — we'll base that on 10 different categories, give him a baseline percentage chance of whether we would have found what we were looking for. I told him there was a good chance we did not locate all the evidence. Asked him if he wanted us to come back at a later date.
MR. BRENNAN: Sir, and when you mentioned that you couldn't finish the search because of the grass — tell us a little bit about what made it difficult because of the grass.
MR. O'HARA: Uh, even using the push brooms, we couldn't properly move the snow off the grass as we were moving it. And with the dark, even the headlamps, I didn't feel like we were clearing it enough to continue searching it. I think our best efforts would be to focus on the street, because I was more concerned about eventually the plow coming in, clearing curb to curb, and moving any evidence that was on the street. My thought was — with the grass, not being able to properly clear it — at least that would be contained to be searched at a later date as the snow melted.
MR. BRENNAN: And given those assessments, is that — are those some of the reasons why you offered to come back?
MR. O'HARA: Uh, yes, sir.
MR. BRENNAN: I've shown you some photographs you've identified — about some of the pieces that you found, or the pieces that you found that night. I'd like to show those photographs to the jury. If we could show Exhibit 73, please. Is that one of the photographs you identified earlier?
MR. O'HARA: Yes, it is, sir.
MR. BRENNAN: Is there a chance, Miss Gilman, that we could do a closeup of that? Can you describe what you're seeing?
MR. O'HARA: Uh, it's a piece of clear tail light. It's got rigid edges, some indentations on it, distinctive markings.
MR. BRENNAN: Did all of the pieces you found have those type of markings on it?
MR. O'HARA: Uh, not sure if they had those exact same markings, sir. I'd have to compare the photos.
MR. BRENNAN: Was there different colors of pieces that you found that night?
MR. O'HARA: Uh, yes. We also found pieces of red tail light as well.
MR. BRENNAN: Could we see 73A, please? Without blowing it up, if you could go back. Is 73A a picture from further away of the same piece?
MR. O'HARA: Uh, yes, that's what it appears to be, sir.
MR. BRENNAN: Um, was it easier to see these pieces that night in person than it is in photos, or was there any difference in the ability to identify these pieces?
JUDGE CANNONE: Sustained.
MR. BRENNAN: When you saw the piece from where you were standing, did it look any different than it does in this photo?
MR. O'HARA: Uh, no, it doesn't.
MR. BRENNAN: Sir, can we see 75 please? In that picture, from this perspective, can you see any pieces of tail light?
MR. O'HARA: There's a piece of red tail light in the left-hand side of that photo, sir.
MR. BRENNAN: On a little bit of a mound?
MR. O'HARA: Uh, correct, sir.
MR. BRENNAN: Is that where that piece was found? On the mound?
MR. O'HARA: No, that — that's the photo, like we discussed earlier, sir, that came up with one of the shovels. And you can see when you get closer to that photo, you'll see the actual molding of the overturned shovel. So, it was scooped up and then placed on that mound.
MR. BRENNAN: Correct. As the trooper overturned it to start beginning to sift through the different layers of snow, that's where he deposited that snow.
MR. O'HARA: Sir, could we get a closeup of the left side of that picture, please?
MR. BRENNAN: Can you see the shovel marks near that piece?
MR. O'HARA: Uh, yes. They're directly behind it. And off to the left you can see the molding of the shovel. You can see a bit of a divot to the left of the red.
MR. BRENNAN: Uh, yes, correct, sir. Is that part of the imprint from the shovel?
MR. O'HARA: Yes it is.
MR. BRENNAN: Sir, could we see 75A, please. Is that a closer picture of the same item?
MR. O'HARA: Uh, yes. The imprint — does that give you a clearer view of the shovel you were speaking about? Yes, it does, sir.
MR. BRENNAN: Can we see 76, please? Is that one of the photographs you identified earlier?
MR. O'HARA: Yes, it is, sir.
MR. BRENNAN: In that piece, was it found at ground level?
MR. O'HARA: Yes, that photo is where that item was located, sir. Touching the ground.
MR. BRENNAN: Uh, yes, sir. Could we get a closeup of that, please? And if we could have 76A, please. Is that a picture of the same item?
MR. O'HARA: Yes, it is. Just zoomed in, sir.
MR. BRENNAN: Okay, you can close that, please, and turn the lights on. Thank you. To be clear on the timeline — your colleague arrived. First colleague arrived at what time?
MR. O'HARA: Uh, 4:54 p.m., sir.
MR. BRENNAN: And you arrived at 4:56. You mentioned that it looked like fresh snow.
MR. O'HARA: Uh, yes, sir. The area we searched was fresh, undisturbed snow. And when you got
MR. BRENNAN: There at 4:56, when you described fresh undisturbed snow, is that your impression when you first got there at 4:56?
MR. O'HARA: Uh, yes. I had realized that the plow had not cleared curb to curb.
MR. BRENNAN: You began your actual search at what time?
MR. O'HARA: Uh, right around 5:20. Excuse me, we moved a couple of our cruisers around just to add extra headlights, extra lighting on the scene itself.
MR. BRENNAN: And the first piece of evidence was found at what time?
MR. O'HARA: 5:45.
MR. BRENNAN: Sir, your area that you searched, did you say it was 8 to 10 ft?
MR. O'HARA: No, sir. The area I marked off was just over approximately 60 ft. We had gone about 8 to 10 ft towards the end of the search without locating any more items, and that's where we suspended the search.
MR. BRENNAN: How much of your focus was near the street area?
MR. O'HARA: Only 99% of it, sir. As soon as we got to the grass and realized we couldn't clear it properly, my main focus was on that street, just again because I was concerned about the plow coming through at a later time.
MR. BRENNAN: You were worried that if you didn't finish the street, there could be some impact from plowing.
MR. O'HARA: Uh, yes, sir.
MR. BRENNAN: And did you say 99% was the street area?
MR. O'HARA: Uh, yeah, approximately, sir.
MR. BRENNAN: Thank you very much.
JUDGE CANNONE: Anything, Mr. Jackson?
MR. JACKSON: Yes, briefly. So, the search went approximately 60 ft.
MR. O'HARA: That's the area I marked off, sir.
MR. JACKSON: And in that 60 ft, you started close to or adjacent to the front door.
MR. O'HARA: Correct. Correct, sir.
MR. JACKSON: And in that 60 ft, you're doing the tank-type search that you described earlier about going just a few paces at a time and starting to move material out of the way to try to get down to the surface.
MR. O'HARA: Correct. Yes, sir.
MR. JACKSON: All working together.
MR. O'HARA: Yes, sir.
MR. JACKSON: And you did not find 40 pieces of tail light at or near or on that street or the lawn or any place else.
MR. O'HARA: Correct. Yeah. I don't know the overall number, sir, but —
MR. JACKSON: And neither did your colleagues.
MR. O'HARA: Correct. So, we've never been notified how much has been located.
MR. JACKSON: The only thing that you found was concentrated in one area, maybe a foot or 2 ft in diameter. You said six or seven pieces and a shoe.
MR. O'HARA: Correct. That's what we located. Yes, sir.
MR. JACKSON: You didn't find a black baseball cap.
MR. O'HARA: Correct. We did not, sir.
MR. JACKSON: And in the photographs that we've seen, that's clearly not undisturbed snow.
MR. O'HARA: Correct. The photographs are us moving — after having moved the snow.
MR. JACKSON: Sir, some of it is y'all moving snow. Some of it is disturbed snow on the street or at the curb.
MR. O'HARA: Correct. After we had moved it. Yes, sir.
MR. JACKSON: You indicated that Trooper Proctor and Trooper Bukhenik, you know both of them, correct?
MR. O'HARA: I know who they are. Yes, sir. I know who they are.
MR. JACKSON: When Trooper Tully told you that the vehicle was en route and could not provide you a photograph at, let's call it, 5:50 p.m., did he tell you that the vehicle had actually been secured at Canton PD about a mile and a half away at 5:35 p.m.?
MR. O'HARA: Uh, no. He did not say that, sir.
MR. JACKSON: Did you know through any other means that that vehicle was just a mile and a half away at 5:35 p.m. before you ever found the first piece of tail light? Did you know that?
MR. O'HARA: I did not know what time it arrived, sir.
MR. JACKSON: Thank you. Do you know what time Trooper Tully told you he did not have a photograph?
MR. O'HARA: Uh, it was sometime after we found the first piece, sir. So, sometime after 5:45, sir.
MR. BRENNAN: Yes, your honor. All right. Thank you.
MR. JACKSON: Thank you. All right, that's all I had.
JUDGE CANNONE: All right, Lieutenant, you are all set, sir. Thank you. Okay. Why not, please? All right. So, jurors, every day I've been asking counsel whether we are on track. Usually, I haven't reported it to you as much, but I can tell you now that we are definitely on track. Maybe a little ahead of schedule, which may just mean down the road a little bit, we'll be back on track. But because we're on track, a little ahead of schedule right now, we're done for today. So, we'll let you leave for today with those same cautions. Please do not discuss this case with anyone. Don't do any independent research or investigation into this case. If you happen to see, hear, or read anything about this case, please disregard it and let us know.
JUDGE CANNONE: Be very careful with your social media use. We'll see you tomorrow. All right.
COURT OFFICER: Jurors, please close your [unintelligible] and follow me. Goodbye.
JUDGE CANNONE: Please be seated. All right. So, counsel, since we have ended a little bit early today, I would like you to go through those exhibits that Mr. McDermott brought to your attention at sidebar and make sure all the redactions are appropriate so we can at least square away that issue. Okay.