Commonwealth v. Read — Trial ArchiveYuri Bukhenik — Cross (Part 1)
817 linesCROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Good afternoon, Sergeant Bukhenik.
MR. JACKSON: Good afternoon, sir.
MR. JACKSON: I want to talk to you for a second about roles in this case in this investigation. Would you agree with me that Michael Proctor was the lead investigator as well as the case agent in charge of this case?
MR. BUKHENIK: He was assigned as the case officer for the case.
MR. JACKSON: In that position, given the fact that it was his assignment, would you agree with me that he had a leadership role insofar as the investigation of the case was concerned?
MR. BUKHENIK: I wouldn't call it a leadership role. It's more of a facilitator/liaison between the DA's personnel and within the office and the state police. He also helps facilitate any missions, outstanding tasks that need to be completed.
MR. JACKSON: He obviously had a supervisor, correct?
MR. BUKHENIK: I'm sorry. Could you repeat that?
MR. JACKSON: He obviously had a supervisor, correct?
MR. BUKHENIK: He did, yes. That would be myself.
MR. JACKSON: That would be you?
MR. BUKHENIK: Yes.
MR. JACKSON: Every case has some lead trooper in your unit, correct? Every case is assigned to someone to sort of be in charge, lead the charge of the investigation; is that right?
MR. BUKHENIK: Every case has a case officer that manages the investigation.
MR. JACKSON: Right. And managing the investigation doesn't mean, you know, sort of typing up schedules. It means actually managing the investigation, like deciding what search warrants are going to be written in certain circumstances. Is that one example, correct?
MR. BUKHENIK: They're responsible for writing and authoring those search warrants. Sometimes the recommendation/suggestion for leadership comes from the supervisors or the DA staff where their experience might dictate otherwise.
MR. JACKSON: And sometimes it comes from the lead case agent himself or herself, correct?
MR. BUKHENIK: At times, yes.
MR. JACKSON: Every team, even back when you were in the military, you were on many, many teams in the Marine Corps, correct?
MR. BUKHENIK: I'm sorry. You were speaking facing away from me. I couldn't hear you.
MR. JACKSON: Every team, including, even back in the time you were in the military, back in the time you were in the Marine Corps, every team has multiple individuals involved in that team, correct? That's the whole point of a team, multiple people, correct?
MR. BUKHENIK: I would agree with you that team consists of more than more person, yes.
MR. JACKSON: And there has to be some sort of echelon in leadership on that team, correct? Everybody's not just equal, coequal, correct?
MR. BUKHENIK: We might have different duties/responsibilities, but some teams have equal rank, yeah.
MR. JACKSON: There's going to be a team leader, right? That's a military phrase, team leader?
MR. BUKHENIK: Yes, there is a team leader in the Marine Corps in the rifle platoon, but not every team has a leader.
MR. JACKSON: Did the team in this case, in this investigation, have a leader, someone who was assigned as the lead case agent, not just another officer, not just another detective, but the lead case agent?
MR. BUKHENIK: The case officer for the investigation was Michael Proctor.
MR. JACKSON: But you don't want to say lead case agent or case officer, correct?
MR. BUKHENIK: I refer to that billet as case officer.
MR. JACKSON: Your responsibility as the supervisor over this particular case officer is -- or any other case officer that you might have or any other trooper that you might have under your supervision, your responsibility in no small part is to supervise the individuals under your command to ensure that the case is adequately investigated. It's properly investigated. That's part of your role as a supervisor, correct?
MR. BUKHENIK: That is one of my many responsibilities, yes.
MR. JACKSON: It's partly because you have more experience, I'm guessing, than the people under your charge; is that right?
MR. BUKHENIK: Certainly in my position, but there are many instances where a sergeant might have less experience than a well- seasoned trooper that's been in the office for 15 to 20 years, so it's --
MR. JACKSON: Fair enough. Fair enough. That may be the case, but under ordinary circumstances, you earn your way into a supervisory role in the Massachusetts State Police through both, not just time, but time and experience, correct?
MR. BUKHENIK: We take an exam and then get promoted based on the exam.
MR. JACKSON: Part of the responsibility that you have as a supervisor is to make sure that the case is properly investigated, and that the array of suspects that may exist, you want to make sure, and you supervise, to make sure that that array of suspects is appropriate and proper, correct?
MR. BUKHENIK: In every investigation we follow the evidence. We follow the statements made provided by eyewitnesses, witnesses in the case, sometimes the defendants or the suspects provides a statement to us. At many instances, those could be contradictory statements. We follow the evidence in every investigation, and that evidence determines who the suspect, person of interest, or ultimately the defendant is.
MR. JACKSON: And you want to make sure that you gather or that your subordinates gather that evidence in an appropriate and objective way; obviously the foundation of your investigation, correct?
MR. BUKHENIK: I'm sorry. Can you repeat that?
MR. JACKSON: Maybe. You obviously as a supervisor want to make sure -- you talked about following the evidence. You want to make sure that that evidence is gathered in a way that is adequate, in a way that is objective, in a way that is unbiased, so that you can gather the evidence and that will lead you to the right folks, the right suspects?
MR. BUKHENIK: We always want to gather as much evidence as possible. We conduct that gathering in the most appropriate ways possible. Sometimes there are tough decisions that have to be made where we have to either decide whether we're collecting evidence A or evidence B, and those decisions have to be made on the spot. At times, it's a time sensitive matter. At times it's a decision made by our group putting their heads together and deciding on that. So I don't know if that answers your question, but that's --
MR. JACKSON: Not really.
MR. BUKHENIK: -- that's the most --
MR. JACKSON: Let's try to it again.
MR. BUKHENIK: -- accurate explanation.
MR. JACKSON: Okay. You done?
MR. BUKHENIK: I am.
MR. JACKSON: Okay. Let's try that again. You want to make sure that you -- the evidence as a supervisor supervising your subordinates, you want to make that the evidence is gathered in an appropriate way, in an objective way, correct? Yes or no.
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. You're also doing everything you can, as a supervisor and someone with the experience, to make sure that the highest levels of integrities -- of integrity and those demands are met in any investigation that you work on.
MR. BUKHENIK: If there was a question of integrity, those individuals would not be part of an investigation.
MR. JACKSON: That includes knowing, obviously, what your subordinates are doing?
MR. BUKHENIK: During the conduct of the investigation, during the process of us investigating a crime, yes, we know what is going on because every bit of information that comes in, needs to be shared and we need to make sure the whole team is aware of all the evidence and information that is available to us at the time.
MR. JACKSON: You want to make sure, I'm going to use a colloquial phrase, you keep tabs of those reporting to you, correct? What are you doing? What are they engaged in? When are they coming and going? Who are they interviewing? Things of that nature. Basic, investigative things, correct?
MR. BUKHENIK: For the most part. You can't track every single person all the time, but this is a very serious line of work, a lot depends on it. We speak for those that could no longer speak for themselves, so we do our best to conduct every investigation with integrity, honor, and get to the truth.
MR. JACKSON: If you don't properly supervise, and I'm talking about your role as a supervisor, if you don't probably engage in that supervision, it obviously increases chances for mistakes. It increases chances for bias seepage. It increases chances that something could affect the adequacy of the investigation, correct?
MR. BUKHENIK: That's a lot there. Can you repeat that, please? Maybe one section at a time.
MR. JACKSON: Sure. If you don't properly supervise your subordinates in an investigation, failing to properly supervise them could increase the chances that mistakes are made; is that right?
MR. BUKHENIK: Yes, that is one possibility, yes.
MR. JACKSON: All right. Let's break it down. It also increases chances that there could be inherent biases that are seeping into the case that you want to make sure doesn't happen, correct?
MR. BUKHENIK: I believe that human beings all have biases, but during the investigation, those biases do not affect, especially in this case, they do not affect any outcome of the investigation.
MR. JACKSON: So I wasn't even talking about this case. I was talking cases in general, your supervisory role in general. Your job as a supervisor is to seek out and make sure that there are no biases in an investigation, correct?
MR. BUKHENIK: Absolutely, absolutely.
MR. JACKSON: You want to make sure that any investigation as a supervisor, any investigation that is under your charge, under supervision, is done adequately and professionally; is that right?
MR. BUKHENIK: Yes, that's right.
MR. JACKSON: And there is a chain of command for that, right, meaning someone under your charge needs to report up the chain of command to you, and you have supervisors to who you report, correct?
MR. BUKHENIK: Yes, it's a paramilitary structure, and it is in order for the colonel to keep command and control over the entire agency of 2,000 plus people, it is absolutely necessary for there be a reporting up and down within the ranks of the Massachusetts State Police.
MR. JACKSON: And you have -- by the way, who is your -- what's your chain of command? Who did you report to back in 2022?
MR. BUKHENIK: I directly reported to Detective Lieutenant Tully.
MR. JACKSON: Especially in a case -- you mentioned this case a second ago. Especially in a case like this, a homicide investigation, especially in a homicide investigation involving a police officer, you have to maintain your knowledge, an intimate knowledge, of those under your command, under your charge to ensure that what they're doing fits what you believe to be the proper protocol. In other words, you're not just going to let people loose. You're going to watch what they're doing and actually supervise them, correct?
MR. BUKHENIK: Yes, absolutely. We are professionals, and we conduct each and every investigation with that in mind and with the integrity that is necessary.
MR. JACKSON: You just used the word I was about to use. That ensures the adequacy of the investigation, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: To use your word, that ensures the integrity of the investigation; is that correct?
MR. BUKHENIK: Yes, that's correct.
MR. JACKSON: As you sit here today, do you believe that this investigation, now I'm going to turn to this investigation, was conducted with professionalism, with competence, at the highest level of integrity?
MR. BUKHENIK: This investigation was conducted professionally, with integrity, and all the evidence collected, all the statements collected, pointed in one direction. There was no bias influence on the evidence on the information that was collected or which direction the investigation pointed, naturally.
MR. JACKSON: Former Trooper Michael Proctor was the person who was the assigned case agent, the lead case agent in this particular investigation, correct?
MR. BUKHENIK: Michael Proctor was the case officer for this investigation.
MR. JACKSON: He was assigned, ultimately, to use another phrase, as the lead investigator, wasn't he?
MR. BUKHENIK: I'm not going to agree with you.
MR. JACKSON: Is there a reason that you want to try to distance yourself from naming Michael Proctor as the lead investigator? Is there some reason?
MR. BUKHENIK: I am not trying to distance myself. All I'm saying is the term that use is the case officer. We're simply case managers. There's no leading an investigation in any direction.
MR. JACKSON: So in your mind -- well, let me ask you this. As the case officer, in other word for that, a synonym, would be an investigator, correct? He's a detective, an investigator, correct?
MR. BUKHENIK: He is a detective, yes.
MR. JACKSON: And he was the one who was assigned by the Massachusetts State Police because of his on-call status that night, that morning, January 29, 2022, he was assigned to the case, correct?
MR. BUKHENIK: Michael --
MR. JACKSON: Yes or no. Assigned to the case. That's all I'm asking.
MR. BUKHENIK: Well, you said a lot before that.
MR. JACKSON: No, I didn't. I said he was assigned to the case on -- what I said before that was January 29, 2022, he was assigned by the Massachusetts State Police as the case officer for this case, correct?
MR. BUKHENIK: No.
MR. JACKSON: Who was?
MR. BUKHENIK: He was assigned to be on-call a month prior. Just because he was on-call, he was assigned the case as a result. He was not assigned the case right there and then because his assignment began much earlier in the day.
MR. JACKSON: All right. Sergeant, we can do this all day I suppose. He was on-call --
MR. BUKHENIK: He was.
MR. JACKSON: -- on January 29, correct?
MR. BUKHENIK: He was.
MR. JACKSON: Because he was on call, any case that happened to come in, would be assigned to whom?
MR. BUKHENIK: To the on-call trooper that's on the schedule.
MR. JACKSON: Which was whom?
MR. BUKHENIK: It was Michael Proctor.
MR. JACKSON: Let me just ask you this. Do you believe that Michael Proctor, his involvement in this case, taints the investigation, tainted the investigation?
MR. BUKHENIK: No.
MR. JACKSON: Not at all?
MR. BUKHENIK: The investigation was done with honor, integrity, and all the evidence pointed in one direction and one direction only.
MR. JACKSON: Honor and integrity by Michael Proctor?
MR. BUKHENIK: Is that a question? I'm sorry.
MR. JACKSON: Sure is. Everything I say is a question. Honor and integrity by Michael Proctor, Sergeant?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained to the comment. Go ahead and ask it again, Mr. Jackson.
MR. JACKSON: I'll ask it again.
MR. JACKSON: You said honor and integrity. Honor and integrity by Michael Proctor?
MR. BRENNAN: Objection.
JUDGE CANNONE: I'll allow it.
MR. BUKHENIK: The investigation was conducted with honor and integrity, and all the evidence pointed in one direction and one direction only.
MR. JACKSON: So, Sergeant Bukhenik, you don't want to answer my question, correct?
MR. BUKHENIK: I will answer your question, absolutely.
MR. JACKSON: Do you think this case was handled with honor and integrity by Michael Proctor, Sergeant?
MR. BUKHENIK: The investigation was handled with integrity by Michael Proctor.
MR. JACKSON: You do know that he touched or had input in nearly every part of this case, obviously, as a police officer, correct?
MR. BUKHENIK: He managed the case.
MR. JACKSON: So he had some input or had some connection to nearly every part of the case, be it the physical evidence, the search warrants, the interviews, things of that nature?
MR. BUKHENIK: He was one of the involved with collecting evidence, conducting interviews, and signing affidavits for the search warrants.
MR. JACKSON: He didn't take a minor role in this case. He had a major role in this case, would you at least agree with that?
MR. BUKHENIK: He had a role that was more significant than others. A major role would me to be suggest that he had 51 percent or more, and with a team of the size that we had working on this case, he did not have a major role.
MR. JACKSON: So you believe as you sit here today, your testimony is Michael Proctor did not have a major role in this investigation of Commonwealth versus Karen Read because he didn't have 51 percent of something? That's your testimony?
MR. BUKHENIK: That's my understanding, yes.
MR. JACKSON: Okay. You're aware of the search warrants that were drafted, affidavits that were attended to those search warrants in this case, correct?
MR. BUKHENIK: Am I aware of affidavits drafted in support --
MR. JACKSON: -- those affidavits?
MR. BUKHENIK: In support of the search warrants?
MR. JACKSON: Correct.
MR. BUKHENIK: Yes, I am.
MR. JACKSON: You're also aware that there was a good amount of physical evidence that was handled in this case, recovered, touched, booked, assigned to the lab, things of that nature.
MR. BUKHENIK: I'm aware of the evidence involved in this case, yes.
MR. JACKSON: May I approach the witness, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Sergeant Bukhenik, I've handed you a binder. It's tabbed just for your convenience so I don't have to walk back and forth.
MR. BUKHENIK: Thank you, sir.
MR. JACKSON: With the Court's permission?
JUDGE CANNONE: Yes.
MR. JACKSON: Can you open tab one?
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: I'm not going to ask you to read the entire search warrant, but is that a search warrant that ends in 07?
MR. BUKHENIK: Yes, it is.
MR. JACKSON: And it's for generally Verizon records for Ms. Read's cell phone?
MR. BUKHENIK: No, I would not agree with you, sir.
MR. JACKSON: What is that search warrant for?
MR. BUKHENIK: It's for Verizon records for a VIN number which looks like a vehicle.
MR. JACKSON: Is that the vehicle the SUV, the licensed SUV in this case?
MR. BUKHENIK: I do not know for sure because it doesn't have that identifier here, and I don't know the VIN number off the top of my head.
MR. JACKSON: Okay. Fair enough. Who is the affiant?
MR. BUKHENIK: Michael Proctor.
MR. JACKSON: Can you turn to tab two? Is that a search warrant ending in number 14?
MR. BUKHENIK: Give me one second. I don't want to ruin your presentation here.
MR. JACKSON: Search warrant ending in 13. I misspoke.
MR. BUKHENIK: Okay.
MR. JACKSON: Is that a search warrant for generally speaking Karen Read's cell phone?
MR. BUKHENIK: The quality of this photocopy is so poor I cannot make out exactly what it's for, but there is an overlay of print I can read what is presented to me. If that's what you want me to do. I do not know if this is an authentic copy of a search warrant.
MR. JACKSON: Let's just look at the affidavit. Can you tell me who the affiant is?
MR. BUKHENIK: On this document, yeah, the affiant is Michael Proctor.
MR. JACKSON: Can you turn to tab -- by the way, just staying with that for a second, you said you don't recognize it. Do you recognize it as being attended to this case?
MR. BUKHENIK: The application or the affidavit?
MR. JACKSON: The search warrant.
MR. BUKHENIK: Again, the application or the -- together?
MR. JACKSON: They go together.
MR. BUKHENIK: I understand that, but I'm asking which document you want me to reference.
MR. JACKSON: The document in total. In other words that's not a search warrant dealing with a different case, it's dealing with Ms. Read's case, correct?
MR. BUKHENIK: Again, I cannot say from the search warrant because of the quality of it. The addendum A appears to be with this case and the --
MR. JACKSON: Have you seen it before?
MR. BUKHENIK: I'm sorry?
MR. JACKSON: Have you ever seen it before this search warrant?
MR. BUKHENIK: I haven't read the whole thing so I can't testify to that.
MR. JACKSON: So this could be a search warrant that you never even saw?
MR. BUKHENIK: Based on what you're presenting to me, never having seen or not having read all the details of it, I cannot say whether I've seen it before or not.
MR. JACKSON: So you're not sure that Michael Proctor didn't just do the search warrant without your knowledge as you sit here?
MR. BUKHENIK: I don't know if this is truly Michael Proctor's product.
MR. JACKSON: You think that might be a forgery?
MR. BUKHENIK: I'm sorry?
MR. JACKSON: You think that might be a forgery the end of that affidavit?
MR. BUKHENIK: For one, it's not signed. So I don't know who produced this. What I'm saying to you is, I don't know who produced it. The quality of the first document, the narrative, I don't know who produced it. If you show me a search warrant application with an affidavit from court with the stamp -- the timestamp and the water seal from court, I will tell you that that is what it appears to be. What you have shown me here, I don't know what this is.
MR. JACKSON: Otherwise, looking at that document, seeing the affidavit, seeing the addendum, seeing Michael Proctor's name on it, no clue whether that's a warrant that's attended for this case that Michael Proctor drafted and submitted? You have no clue?
MR. BUKHENIK: I can't tell -- take you at your word what you – based --
MR. JACKSON: I'm not asking you to take me at my word, sir. I'm not testifying. I'm asking you to take the document at its word. Do you recognize it or not? If you don't, you don't.
MR. BUKHENIK: I do not, no.
MR. JACKSON: Okay. Let's turn to tab three. Does that appear to be a search warrant ending in the number 14?
MR. BUKHENIK: Yes, it is.
MR. JACKSON: And does that appear to generally be associated with Ring camera footage at One Meadows or can you not tell that?
MR. BUKHENIK: It has an email address, an associated MAC address. So, yes, that's what it appears to be.
MR. JACKSON: Okay. Can you tell me who the affiant is?
MR. BUKHENIK: Again, this is not a signed search warrant. This is just an affidavit.
MR. JACKSON: Whose name is at the bottom?
MR. BUKHENIK: The name at the bottom printed is Michael Proctor.
MR. JACKSON: Can you turn to tab four?
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Does that appear to be a search warrant ending in the number 04?
MR. BUKHENIK: Yes, it does.
MR. JACKSON: And does that appear to be for Ring footage also at One Meadows in 2023?
MR. BUKHENIK: Based on the application addendum A, it's the same email address associated with the previous location of Meadows, yes.
MR. JACKSON: Who is the affiant?
MR. BUKHENIK: Michael Proctor.
MR. JACKSON: Can you turn to tab five?
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Does that appear to be a police report?
MR. BUKHENIK: It does.
MR. JACKSON: And do you see a reference in that police report for a search warrant ending in 10 for a telematics system regarding Ms. Read's SUV? It may speed things up if you look at page 2.
MR. BUKHENIK: There is a reference to it, yes.
MR. JACKSON: Whose report is that?
MR. BUKHENIK: It's Trooper Nicholas Guarino's report.
MR. JACKSON: Who is referred to on page 2 as seeking a search warrant ending in 10?
MR. BUKHENIK: That search warrant was issued out of Stoughton District Court to and presented by Trooper Proctor.
MR. JACKSON: Turn to page -- I'm sorry -- tab six if you wouldn't mind.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Do you see a search warrant ending in the number 77?
MR. BUKHENIK: I see the application, yes.
MR. JACKSON: And this deals with Google and some geofence data, correct? A Yes, it is.
MR. JACKSON: Who is the affiant?
MR. BUKHENIK: Again, this search warrant is not signed, so. But I would say this isn't an actual search warrant, but it seems like at the bottom it says Trooper Michael Proctor.
MR. JACKSON: Can you turn to tab seven, please?
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Does that appear to be a report from -- authored by Nicholas Guarino?
MR. BUKHENIK: It does.
MR. JACKSON: Does that deal with John O'Keefe's cell phone?
MR. BUKHENIK: It's a report written by Nicholas Guarino referencing Mr. O'Keefe's cell phone, yes.
MR. JACKSON: And it indicates that Mr. O'Keefe's cell phone was seized by a particular trooper?
MR. BUKHENIK: That's what the report indicates, yes.
MR. JACKSON: Who's the trooper?
MR. BUKHENIK: In this report, it says that Trooper Proctor secured the cell phone.
MR. JACKSON: Turn to tab eight, if you don't mind.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Do you see a similar report by Trooper Guarino?
MR. BUKHENIK: Yes.
MR. JACKSON: And do you see a reference -- excuse me -- to Karen Read's cell phone having been seized?
MR. BUKHENIK: Yes.
MR. JACKSON: And that was seized by Trooper Proctor also, correct?
MR. BUKHENIK: Yeah, him and I were there together.
MR. JACKSON: His name is in the report, though?
MR. BUKHENIK: Yes, his name is in the report.
MR. JACKSON: Your name is not in the report, is it?
MR. BUKHENIK: I'll have to check. Give me a second, please. My initials are in the report.
MR. JACKSON: Turn to tab nine.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Do you see a report by you?
MR. BUKHENIK: I do.
MR. JACKSON: Indicating early spring 2022 there was a CPD video requested by someone, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: Who did you indicate requested that CPD video?
MR. BUKHENIK: The case officer, Trooper Proctor.
MR. JACKSON: And you went actually in this instance, you actually went and got the video and delivered it to him, correct, at his request?
MR. BUKHENIK: Yes, as the case officer I would, yeah.
MR. JACKSON: Because as the case officer, he's entitled to ask for things and have them delivered, correct?
MR. BUKHENIK: Anybody's entitled to ask for things. Absolutely. We are pursuing justice. We're looking for any and all possible evidence.
MR. JACKSON: I'm sure you are. As the case officer, he's entitled to ask for things to be delivered to him?
MR. BUKHENIK: Yes, yes.
MR. JACKSON: You are his supervisor?
MR. BUKHENIK: Yes, absolutely.
MR. JACKSON: You wouldn't mind turning to tab, please.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Do you recognize that report?
MR. BUKHENIK: I'm sorry. I was still turning. It's the same report.
MR. JACKSON: Same report, different paragraph also talking -- or the different sentence talking about a July 2023, CPD or Canton Police Department video that was also requested, correct?
MR. BUKHENIK: I'm sorry. Can you repeat that question?
MR. JACKSON: Sure. That particular part of the report where I'm directing your attention to July of 2023, there was a Canton Police Department video requested by someone, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: Who was that requested by?
MR. BUKHENIK: Trooper Proctor.
MR. JACKSON: And who delivered it to Trooper Proctor?
MR. BUKHENIK: I did.
MR. JACKSON: Turn to tab 11, please.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Do you see a document referencing the analysis of Canton town library videos?
MR. BUKHENIK: I do.
MR. JACKSON: And, who is it, listed as having received and reviewed and analyzed the town library videos.
MR. BUKHENIK: Give me just one second. I have to read the report. It was Trooper Proctor that analyzed the video and wrote up the timeline.
MR. JACKSON: Thank you. Sergeant, if you'll turn to tab at 12.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: Do you recognize that as being a November 2023, report?
MR. BUKHENIK: Yes, it's report numbered 83.
MR. JACKSON: And who authored that report?
MR. BUKHENIK: This report is authored by Trooper Michael Proctor.
MR. JACKSON: Does that indicate -- and I'm not going to ask you to go through the entirety of the report, but if you scanned that report, does that indicate certain items of evidence that Trooper Proctor claim to have recovered on his own, pieces of plastic, small black plastic, clear plastic, a fragment of glass on February 11, 2022, three pieces of clear plastic on February 11, 2022, clear and red plastic pieces on February 18th of 2022. Is all that referenced in there?
MR. BUKHENIK: Those items are documented in this reference as were collect, yes.
MR. JACKSON: And those are all documented as having been collected by Trooper Proctor himself, correct?
MR. BUKHENIK: Yes, they were.
MR. JACKSON: And if you turn to tab 13.
MR. BUKHENIK: (Witness complies.)
MR. JACKSON: This is an evidence submission form, correct?
MR. BUKHENIK: I'm sorry, 13?
MR. JACKSON: Tab 13, yes.
MR. BUKHENIK: All right. Yes, it's a copy of an evidence submission form from March 14, 2022.
MR. JACKSON: And does that indicate submission of certain items of physical evidence to -- from Massachusetts State Police custody to the crime lab, correct?
MR. BUKHENIK: I would say so based on the -- this copy's information on there, yes, I would say so.
MR. JACKSON: And who's the person who submitted the items that we'll -- I'll ask you about?
MR. BUKHENIK: It is Trooper Michael Proctor.
MR. JACKSON: And those items include clothing; is that right? We don't have to go through them line by line, but generally, there's clothing items mentioned on there.
MR. BUKHENIK: The first line is a clothing item, yes.
MR. JACKSON: That includes a lot of what we saw today, Sergeant Bukhenik, the shirt, the orange shirt, the sweatshirt, the blue jeans, a belt, correct?
MR. BUKHENIK: Blue jeans, belt. What was the other thing that you listed? Q Shirts. A There was a shirt, yes.
MR. JACKSON: It also lists certain items of plastic, certain items of glass; is that right?
MR. BUKHENIK: Some of those items are listed, yes.
MR. JACKSON: And it even mentions the straw that you talked to Mr. Brennan about, correct?
MR. BUKHENIK: Yes, the straw is mentioned and numbered.
MR. JACKSON: And all those items were submitted on March 14, 2022, correct?
MR. BUKHENIK: That's what the form indicates, yes.
MR. JACKSON: And all of those items were submitted by Michael Proctor from his custody and control to the crime lab, correct?
MR. BUKHENIK: That's who signed the form.
MR. JACKSON: So the things that, according to the form at least, and your experience with forms of this nature, it was Michael Proctor who possessed and controlled those items before they were turned over to the Massachusetts State Police -- I'm sorry -- to the crime lab, correct?
MR. BUKHENIK: That would be accurate, yes.
MR. JACKSON: So he would have maintained all of it; is that right? At least at some point?
MR. BUKHENIK: They would have been in his custody as he's transporting them for processing at the lab, of course.
MR. JACKSON: And then after he maintained control of it, eventually he turned it over and submitted those items, correct?
MR. BUKHENIK: If the form is accurate, then, yes. That's absolutely right.
MR. JACKSON: So we've just gone through a few things. What you and I have just gone through is not nearly everything that Michael Proctor was involved with in terms of this investigation, correct? We didn't talk about the witness interviews, right?
MR. BUKHENIK: We did not talk about witness interviews, no.
MR. JACKSON: So there's a lot more that Michael Proctor on a day-to- day basis as the case officer was involved in addition to what you and I just talked about, correct?
MR. BUKHENIK: Yes, there was many more things he was involved in. As I mentioned, that was just report 83. There's a hundred plus reports in this case that were written. There's a lot of evidence that was collected and processed. So he had a part in the investigation as the case officer managing the tasks, but there's a lot of people involved in this investigation.
MR. JACKSON: So he touched or authored or reviewed or controlled at least every bit of what you and I have talked about this morning, all these items we just talked about, correct?
MR. BUKHENIK: He is referenced or his name appears on most of these documents, yes, if not all.
MR. JACKSON: Of the documents we just went through, he's not just referenced; he's the author of every single one of them, correct?
MR. BUKHENIK: No, Nicholas Guarino wrote some of these reports.
MR. JACKSON: Sorry. The author of the search warrant, I asked you to look at Nicholas Guarino's report to reference the search warrant that Nicholas Guarino referenced in his report, and Michael Proctor was the author of that search warrant, correct?
MR. BUKHENIK: Again, I hate to do this to you, but ...
MR. JACKSON: Oh, I don't think you do.
MR. BUKHENIK: Some of these search warrants were not -- could not be authenticated. I don't know what these documents were. I didn't read them so I can't tell you that he was the author. Like, what you presented, I can't speak to.
MR. JACKSON: You just made my point. Even as the supervisor, you don't know everything that Michael Proctor was doing, do you?
MR. BUKHENIK: It's impossible to know everything somebody was doing.
MR. JACKSON: Got it. Especially the case officer on this case, as busy as he was, right?
MR. BUKHENIK: I'm sorry?
MR. JACKSON: Especially the case on this case as busy as he was, Michael Proctor, right?
MR. BUKHENIK: He was keeping us and his supervisors abreast of what was happening, the next step, the search warrants he was writing, the evidence that was being collected, the interviews that are being conducted, court dates, and motions, and stuff like that.
MR. JACKSON: So he would do the work, and then keep you, as the word you just used, keep you abreast of that work?
MR. BUKHENIK: Right. Unless I was involved with the investigation myself, we did a ton of interviews together as I authored some of these reports as well. I said there was 100 plus reports.
MR. JACKSON: Sir, you were notified on January 29, 2022, that a Boston police officer was found gravely injured in front of 34 Fairview in the lawn, in the yard, correct?
MR. BUKHENIK: No, that is not correct.
MR. JACKSON: What were you notified of?
MR. BUKHENIK: When the notification came in, it was that there was a male party found in the snowbank.
MR. JACKSON: At some point you learned that male party was John O'Keefe, a police officer, correct?
MR. BUKHENIK: At some point, we did learn that he was a Boston police officer.
MR. JACKSON: As a matter fact, you learned that morning. It might not have been the first notification, but certainly early that morning, you knew that John O'Keefe was a Boston police officer?
MR. BUKHENIK: At some point we learned. I can't -- I don't remember exactly when, if it was morning, just after 12. I don't know when. But we did learn that he was a Boston police officer.
MR. JACKSON: I'm not asking about what Trooper Proctor learned but what you learned. You learned that he was a Boston police officer, correct?
MR. BUKHENIK: At some point, I learned that he was a Boston police officer, yes.
MR. JACKSON: And on January 29, did you ever respond to 34 Fairview Road at any time?
MR. BUKHENIK: On January 29, 2022, at no point in time that I or Michael Proctor, who was with me the whole time, ever respond to 34 Fairview Road.
MR. JACKSON: So the answer to my question very simply is no, right?
MR. BUKHENIK: That's correct.
MR. JACKSON: You just answered this question as well, but I want to make sure we're absolutely clear.
MR. JACKSON: Your Honor, may I approach? I don't want the binder to be in the witness's way.
MR. JACKSON: At no point on January 29, 2022, did Michael Proctor respond to 34 Fairview Road either, did he?
MR. BUKHENIK: No, he did not.
MR. JACKSON: You already indicated and you described in some detail that Massachusetts State Police took over the investigation from Canton Police Department from around 8:00 or 9:00 a.m., correct, following certain protocols?
MR. BUKHENIK: Yes, at some point in the morning, once it was determined that Mr. O'Keefe was gravely injured and was being transported to the hospital with no signs of life, and we were advised that he had an estimated ten percent of survival rate, we engaged our services and responded to Canton police to begin the investigation.
MR. JACKSON: So the answer to that question is yes, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: You'll often work with a local police agency, even though -- police department, even though Massachusetts State Police may have statutory jurisdiction over the case because it's a homicide, right?
MR. BUKHENIK: Yes. Part of our mission is to aid and assist local police departments when they request it. In this specific situation, as I stated earlier, the DA's office has exclusive jurisdiction over death investigations, and our office has that responsibility of investigating those cases, but we work very well with local departments.
MR. JACKSON: So the answer to that question is yes, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: If you can answer my question yes or no, this will go a lot faster. In this case, even though you often times work with the local law enforcement agencies, it was determined you would not continue working with Canton PD because of a conflict or the perception of a potential conflict of interest, correct?
MR. BUKHENIK: To alleviate any perception, not that one existed, the Canton Police Department recused themselves from being involved in the interview portion of the investigation.
MR. JACKSON: And that's in no small part because the lawn on which Mr. O'Keefe was found belongs to Michael Albert -- I'm sorry -- to Brian Albert, and Kevin Albert, Brian Albert's brother, worked as a detective at Canton Police Department, correct?
MR. BUKHENIK: That was my understanding why they chose to take those steps.
MR. JACKSON: Your first documented action in this case was to call the medical examiner's office, first documented action, not the first thing you did, but the first thing that you documented that you did was call the medical examiner's office at about 10:41 a.m., correct?
MR. BUKHENIK: In what respect are you saying first documented action?
MR. JACKSON: There's a report where we can look at the earliest thing that you did, and it's actually written down and documented. Do you know what I mean by documented? Written on a piece of paper.
MR. BUKHENIK: In that respect of documentation, I would have to look into it. I believe there was something probably before that, since there was a documentation of us getting notified of the incident.
MR. JACKSON: At 10:41 -- let me just ask it a little bit more straightforward if I can. Let's get to the point. At 10:41 a.m., you called the medical examiner's office to inform that Mr. O'Keefe, quote, was struck in the face with a cocktail glass or at least appeared to be, correct?
MR. BUKHENIK: That is in part what I advised the medical examiner's office. Where they are responsible for the medical portion of --
MR. JACKSON: Objection, Your Honor. May we approach briefly?
JUDGE CANNONE: Okay.
(Sidebar commences:
MR. JACKSON: I don't want to embarrass the witness, and I certainly don't want do anything to make the jurors uncomfortable, but I'm just going to have to start objecting. This witness is literally giving a narrative after every single question. I know the Court notices it. I notice it. Everybody else notices it. It's becoming almost comical. I've asked him probably six times elegantly, so the answer to my question is yes, or the answer to my question is no. If you can -- I even said, "If you can answer a question yes or no, help me out." This is going to take five days if this continues. I'm going to ask the Court to admonish -- if we could take a five-minute break.
JUDGE CANNONE: I'm going to tell him to focus on your question and answer your question.
MR. JACKSON: Thank you.
MR. BRENNAN: I will note some of the questions are not accurate. For example, he was asked if the first documented event was calling the medical examiner's office. It's not. And it's not his document so it becomes a confusing question, and the predicate isn't there. I agree this witness should answer the questions, directly; however, some of these questions can't be answered yes or no.
JUDGE CANNONE: You're most effective with the ones that the questioning are like the bare basic with this witness.
MR. JACKSON: I'm going to try to pare it down as much as I can.
JUDGE CANNONE: A lot of your questions incorporated two or three points, and you know with a difficult witness, if he disagrees to one, you're getting nothing out of him.
MR. JACKSON: Understood. I will do my part as well.
JUDGE CANNONE: All right. So I'll just tell him to do his best to answer your question.
end of sidebar.)
JUDGE CANNONE: All right. So, Sergeant, I'm going to ask you to do your best to answer the question that's asked.
MR. BUKHENIK: Yes, Your Honor.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: Did you contact the medical examiner's office in the morning of January 29, 2022?
MR. BUKHENIK: Yes.
MR. JACKSON: And did you state to them that there was a possibility that the decedent, John O'Keefe, was struck in the face with a cocktail glass?
MR. BUKHENIK: I don't recall my words exactly, but that sounds accurate to what I might have said.
MR. JACKSON: At least your initial investigation during those early morning hours, those critical hours, led you to believe at least that there was a possibility that there was a physical altercation, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: What steps did you take at that moment to determine whether or not anybody in the house may have been involved in that physical altercation that you thought was a possibility?
MR. BUKHENIK: That's a compound question. I have to answer it separately.
MR. JACKSON: Answer however you want to. It's an open ended question, which is unlike me. What steps did you take to at that moment to determine whether or not anybody in the house could have been involved in that possible physical altercation that you just described?
MR. BUKHENIK: We interviewed the homeowner and two witnesses that were in that house.
MR. JACKSON: You never went into the house, did you?
MR. BUKHENIK: I personally --
MR. JACKSON: January 29, at least?
MR. BUKHENIK: I personally did not go in the house on --
MR. JACKSON: You did not secure the house or remove the occupants, did you?
MR. BUKHENIK: Which day?
MR. JACKSON: January 29, I'm talking about the morning of January 29?
MR. BUKHENIK: I did not, no.
MR. JACKSON: You did not secure the yard as a crime scene, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: You didn't conduct any search of that house?
MR. BUKHENIK: No, I did not.
MR. JACKSON: You didn't take any photographs of the interior of that house?
MR. BUKHENIK: I did not.
MR. JACKSON: You didn't ask a forensic criminalist to join you and process the house, correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: You didn't set up a crime scene log to determine who was coming in and going out of the potential crime scene?
MR. BUKHENIK: I did not.
MR. JACKSON: No one actually documented the crime scene by taking contextual photographs and then close-up photographs, et cetera during those early morning hours, correct?
MR. BUKHENIK: I cannot speak to that. I was not there.
MR. JACKSON: So the answer is you didn't do that, and you didn't cause that to be done?
MR. BUKHENIK: I did not do that.
MR. JACKSON: Crime scene services section, what is that?
MR. BUKHENIK: It's a unit, specialized unit, on the state police. They are specially trained with documentation, photographs, video, latent fingerprints, foot and tire impressions, footwear and tire impressions. They assist other investigators in documenting and processing scenes.
MR. JACKSON: Did you contact CSSS to process the house or the yard or the area adjacent to the yard?
MR. BUKHENIK: Which house, sir?
MR. JACKSON: 34 Fairview, Sergeant Bukhenik. Did you think I was talking about a different house?
MR. BUKHENIK: Yes, I did.
MR. JACKSON: Really?
MR. BUKHENIK: Yes.
MR. JACKSON: Let's stick with 34 Fairview where John O'Keefe's body was found. Did you call CSSS out to the scene to process that house?
MR. BUKHENIK: I did not contact crime scene services on January 29, to the area of 34 Fairview Road to the lawn where John O'Keefe's body was found.
MR. JACKSON: You mentioned that you conducted interviews that day, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: Where were those interviews conducted?
MR. BUKHENIK: The first interview was conducted at Canton Police Department. The second, third, and fourth were conducted at a residence in Canton. The fifth --
MR. JACKSON: I'm sorry. What was the first interview at Canton Police Department that morning?
MR. BUKHENIK: Sergeant Goode.
MR. JACKSON: So other than Sergeant Goode, I'm talking about civilian witnesses. You mentioned three civilian witnesses. Where were those three witnesses interviewed?
MR. BUKHENIK: At a residence in Canton.
MR. JACKSON: But not at 34 Fairview Road, just to be clear?
MR. BUKHENIK: They were not at 34 Fairview Road, no.
MR. JACKSON: They had been at 34 Fairview Road, though, hadn't they, all three of them?
MR. BUKHENIK: Yes, they had.
MR. JACKSON: As a matter fact, Michael Proctor spoke to one, at least one of them, while she was at 34 Fairview Road, correct?
MR. BUKHENIK: I don't know.
MR. JACKSON: Weren't you with Michael Proctor when he spoke to Jennifer McCabe?
MR. BUKHENIK: Which time, sir?
MR. JACKSON: The first time he called her to set up the interview that morning on January 29.
MR. BUKHENIK: I don't know where Jennifer McCabe was. I can't testify to that. I have no idea.
MR. JACKSON: So if that call was made, she talked about that call being made, that was made by Michael Proctor, not by -- outside of your presence?
MR. BUKHENIK: Can you repeat that?
MR. JACKSON: Sure. If there was a call made to Jennifer McCabe by Michael Proctor that morning, that was outside your presence?
MR. BUKHENIK: Not necessarily. I just did not know where she was.
MR. JACKSON: So the only three people you interviewed were Jennifer McCabe, Matt McCabe, and Brian Albert, correct?
MR. BUKHENIK: Not correct.
MR. JACKSON: Who else?
MR. BUKHENIK: The defendant.
MR. JACKSON: Other than Ms. Read and before you got to Ms. Read, because you didn't get to Ms. Read, correct, until 3:34, correct --
MR. BUKHENIK: In the afternoon.
MR. JACKSON: -- in the afternoon?
MR. BUKHENIK: I don't know exactly what time we began the conversation.
MR. JACKSON: I'm talking about in the morning when you were trying to figure out what was going on, you interviewed three people?
MR. BUKHENIK: Yes, we did.
MR. JACKSON: Three civilians.
MR. BUKHENIK: At one point we interviewed three civilians, the homeowner at 34 Fairview Road, and two witnesses that were with Mr. O'Keefe and the defendant the night prior and then one of the witnesses that was with the defendant when Mr. O'Keefe was discovered.
MR. JACKSON: And these are individuals that you made the assessment having been with or shortly -- been with at time or shortly before he was last seen alive, correct?
MR. BUKHENIK: Based on the information that we had at that time, one of the individuals was with him right before he was seen alive.
MR. JACKSON: And the other two --
MR. JACKSON: Right before he was last seen alive?
MR. BUKHENIK: One of the individuals was with him right before he was last seen alive, and the other two --
MR. JACKSON: When he was last seen alive?
MR. BUKHENIK: One of the individuals with him right before he was last seen alive, and two of the individuals saw the defendant and Mr. O'Keefe together.
MR. JACKSON: And those same two individuals were also with Mr. O'Keefe just minutes before he was last seen alive in the Waterfall, correct?
MR. BUKHENIK: All three of the individuals were with Mr. O'Keefe and the defendant at Waterfall, yes.
MR. JACKSON: And all three of the individuals were also at 34 Fairview when Mr. O'Keefe arrived. You had that information, didn't you?
MR. BUKHENIK: We did not have information of Mr. O'Keefe arriving at the house. He was dropped off on the lawn.
MR. JACKSON: And all three people, all three, were either named McCabe or Albert. Those are the three people that you had information from, correct?
MR. BUKHENIK: Which information? We had information from lot of different sources at that point in time.
MR. JACKSON: I'm talking about the first three interviews that you did. The first three civilian interviews you did that morning. Still on the same thing.
MR. BUKHENIK: Right.
MR. JACKSON: You managed to talk to three people at a residence in Canton: Brian Albert, Jen McCabe, Matt McCabe. All three were at 34 Fairview when they indicated John O'Keefe arrived in an SUV. They all told you that, right?
MR. BUKHENIK: They were inside the home when the defendant and Mr. O'Keefe arrived in the SUV.
MR. JACKSON: These are the very people that would have a motive to lie if they were somehow involved, right?
MR. BRENNAN: Objection.
JUDGE CANNONE: Can you answer that, Sergeant?
MR. BUKHENIK: No, Your Honor.
MR. JACKSON: You're a professional investigator, correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: Homicide investigator, right?
MR. BUKHENIK: That's correct.
MR. JACKSON: Many years of experience, right? Is that a yes?
MR. BUKHENIK: I don't know what many means to you, but.
MR. JACKSON: Well, of course not. Let me -- how many years of experience do you have?
MR. BUKHENIK: In homicide?
MR. JACKSON: Correct.
MR. BUKHENIK: Ten next week.
MR. JACKSON: Does that sound like many?
MR. BUKHENIK: Again, I didn't answer the first time because I don't know what you would think many is.
MR. JACKSON: Right, right, right. Suspects ever lie to you?
MR. BUKHENIK: Yes.
MR. JACKSON: Suspects lie to you all the time, don't they?
MR. BUKHENIK: All the time is not accurate. They lie about certain things to create an alibi for themselves and state contradicting facts or fabricated stories.
MR. JACKSON: And --
MR. BUKHENIK: All the time would mean that they're constantly lying about everything.
MR. JACKSON: You understand the colloquialism "all the time"?
MR. BUKHENIK: I do not know the term colloquialism.
MR. JACKSON: Okay. Let's try it a different way. If these three individuals were involved in the death of John O'Keefe, or knew others who were involved in the death of John O'Keefe, and they were close to, they would have a motive to lie about that, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: But you took these three individuals just at their word based on those first three interviews, correct?
MR. BUKHENIK: No, not correct.
MR. JACKSON: You didn't go in the house. You didn't did search the house. We've already talked about that, right?
MR. BUKHENIK: I did not go into 34 Fairview Road. No, I did not.
MR. JACKSON: You didn't ask them to come with you down to the station, correct?
MR. BUKHENIK: That's correct. I did not ask them to come to the station.
MR. JACKSON: As a matter fact, when you went to interview Jennifer McCabe at her home, Brian Albert happened to be there, correct?
MR. BUKHENIK: He was there, and I was able to conduct the interview at the house with Brian Albert, yes.
MR. JACKSON: Did you find that odd?
MR. BUKHENIK: Absolutely not.
MR. JACKSON: Totally normal for you to conduct a formal interview in a homicide case and have an extra person show up at the house just to be there.
MR. BUKHENIK: Absolutely. Cooperating witnesses always try and be assisting, so cooperating witnesses would assist us.
MR. JACKSON: You just used the word always. You didn't know what "all the time" means. Would they always try to be assisting?
MR. BUKHENIK: Well, they're cooperating. That's in the nature.
MR. JACKSON: So they always try to help you out?
MR. BUKHENIK: All right. Maybe I misspoke. They are cooperating witnesses, so always is such a finite definitive statement. I apologize for using it.
MR. JACKSON: And if an investigator is keeping an open mind, right, open to all possibilities at the beginning of the investigation, someone you now are calling a cooperating witness, there might well be a suspect who's lying, correct?
MR. BUKHENIK: Yes, yes.
MR. JACKSON: That's a possibility?
MR. BUKHENIK: That is a possibility, yes.
MR. JACKSON: May I have just a minute, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: I want to shift gears for a second, Sergeant Bukhenik, and ask you about some of the physical evidence in the case. You and Mr. Proctor collected the gray sweatshirt and the orange T-shirt that we saw entered into evidence today, correct? A That's correct.
MR. JACKSON: You talked about finding that evidence at the Good Samaritan Hospital; is that right?
MR. BUKHENIK: That is where it was seized from, yes.
MR. JACKSON: You described it as being on the floor, correct?
MR. BUKHENIK: That's correct, yes.
MR. JACKSON: Where on the floor was it when you first saw it? On the hospital floor, not the ambulance floor, correct?
MR. BUKHENIK: When I first saw it was on the hospital floor, correct.
MR. JACKSON: All right. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Can you take a look at that photograph, please?
MR. BUKHENIK: Yes.
MR. JACKSON: Do you recognize that, sir?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: And how do you recognize it?
MR. BUKHENIK: It's one of the photographs taken from Mr. O'Keefe's emergency department room.
MR. JACKSON: Do you recognize the shirt or shirts that you earlier described as being in that photograph?
MR. BUKHENIK: There is an orange shirt depicted on the floor to the left side, yes.
MR. JACKSON: Your Honor, I'd ask that that be marked and entered into evidence.
MR. BRENNAN: No objection.
MR. JACKSON: While that's being marked, may we approach very briefly?
JUDGE CANNONE: Okay.
(Sidebar commences:
JUDGE CANNONE: I don't know whether it's been marked. Go ahead and mark it, and then you can go ahead.
(Whereupon Exhibit No. 110, Photograph, was marked as an exhibit.)
MR. JACKSON: Your Honor, I would at some point, I would like to show this to the jurors, but I don't -- out of deference to the family, I don't want them to have to see this.
JUDGE CANNONE: Are you going to crop it and --
MR. JACKSON: I wasn't going to. I think the jurors are fine seeing it.
JUDGE CANNONE: Do you care if the family sees this?
MR. BRENNAN: I prefer they don't. I appreciate the kindness. Perhaps we can -- do you want to do it right now?
MR. JACKSON: You know what I could do is I could --
MR. BRENNAN: He has a right to show it if it's important.
MR. JACKSON: That's what I was thinking. I could just --
COURT CLERK: Yeah --
MR. JACKSON: I'm happy to do that.
MR. BRENNAN: To walk it by the jury.
MR. YANNETTI: Yeah, exactly.
JUDGE CANNONE: The cameras are right so if they don't see it -- MR. JACKSON: Oh, that's a good point.
MS. MCLAUGHLIN: May I have a minute?
JUDGE CANNONE: Yes. So just so the record is clear, Ms. Laughlin said she'd like to just give the family a heads up and it appears that's what she's doing.
MS. MCLAUGHLIN: There's no objection. The family understands.
JUDGE CANNONE: All right.
MR. BRENNAN: Thank you. I appreciate that.
end of sidebar.)
MR. JACKSON: With Your Honor's permission, may I publish?
JUDGE CANNONE: Yes.
MR. JACKSON: Sergeant Bukhenik, this is Exhibit 110. You just mentioned seeing an orange shirt. Do you have a laser pointer with you? If you don't I can grab you one.
MR. BUKHENIK: I do.
MR. JACKSON: Can you point for the jurors where you were describing the orange -- just pick whichever TV you want to use.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes. It worked earlier, didn't it?
MR. JACKSON: That's a beast. That should work. Tell me which TV you're going to look at so the jurors understand and follow.
MR. BUKHENIK: I'll do the one to my right so the jurors can see. There is something orange right there on the floor.
MR. JACKSON: Does that appear to be on top of something darker?
MR. BUKHENIK: It does appear to be on top of possibly a darker item of clothing, possibly the jeans. I'm not sure exactly from here what that is.
MR. JACKSON: Do you believe as you sit here, and I'm asking it open because I don't know what the answer is, do you believe as you sit here that's the orange shirt and/or the gray sweatshirt and/or the jeans?
MR. BUKHENIK: If we can zoom in, I can probably pick out the pattern. So from here, it looks like it's a cut fabric indicating that it most likely is the orange shirt. The jeans, you can see the belt loop through the jeans on the left side. I would say that that is Mr. O'Keefe's clothing that we picked up and bagged.
MR. JACKSON: Okay. If you could unzoom that for me. One more question. Do you see Mr. O'Keefe's left leg and right leg from about the little lower than mid-thigh down, correct?
MR. BUKHENIK: Mid-thigh down I see, his leg, yes.
MR. JACKSON: Okay. You see his right knee?
MR. BUKHENIK: The interior portion of it, yes.
MR. JACKSON: Do you see any scrapes or marks or cuts or abrasions on that right knee?
MR. BUKHENIK: Not from this point, no.
MR. JACKSON: Thank you.
MR. JACKSON: You can take that down. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: I have one more question on that photo. Sorry about that. Can we display the photo one time, Ms. Johnson? We don't even have to turn the lights off. Take a look to the left. Could you zoom in on the chair? Do you see that item sitting on the chair, Sergeant?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: What is that?
MR. BUKHENIK: That is either mine or Michael Proctor's notepad binder.
MR. JACKSON: Thank you. You can take that down. Concerning the two shirts that you earlier testified to being sopping wet, did you bag those shirts -- well, did you bag those shirts or did Michael Proctor bag those shirts?
MR. BUKHENIK: We bagged them together. If my memory is not failing me, I believe he picked it up, and I held the bag open. But I could be wrong maybe I picked it up and he held it open.
MR. JACKSON: That's fine. The two of you together got it in a bag?
MR. BUKHENIK: Yes.
MR. JACKSON: Was it a paper bag or a plastic bag?
MR. BUKHENIK: It was a large paper bag the size of like a leaf lawn - - lawn leaf bag you would get for disposing your yard waste.
MR. JACKSON: Was -- and is it specifically an evidence bag or was it something that you all came up with on the spot?
MR. BUKHENIK: It's a bag that was provided by crime scene services.
MR. JACKSON: Okay. So it's an official law enforcement type bag or a grocery bag?
MR. BUKHENIK: It was not a grocery bag. It was a large bag.
MR. JACKSON: Okay. Understood. Did both shirts go in the same bag?
MR. BUKHENIK: All the clothing items that were in the pile went into the same bag.
MR. JACKSON: Does that include the jeans and belt and boxer shorts?
MR. BUKHENIK: Yes, yes.
MR. JACKSON: You went from Good Sam, Good Samaritan straight to Dighton, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: And you are the one that put the bag in your -- the super cab of your pickup truck?
MR. BUKHENIK: Yes.
MR. JACKSON: And then from Dighton, you went over to Canton PD; is that right?
MR. BUKHENIK: Yes, we did.
MR. JACKSON: And then from Canton PD, ultimately before the night was out, you ended up back at the Norfolk DA's office which is where you and Michael Proctor's office at the time, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: When exactly, if you recall, did you lay out the clothing? You indicated it was sopping wet. You laid it out on butcher paper. When was that?
MR. BUKHENIK: It was during the evening hours once we arrived to the Canton office.
MR. JACKSON: It was about 10:00 p.m. I'm guessing?
MR. BUKHENIK: No, it was before that.
MR. JACKSON: It was before 10:00?
MR. BUKHENIK: Yes.
MR. JACKSON: Can I have just a moment?
JUDGE CANNONE: Yes.
MR. JACKSON: Sergeant, I just want to get the record as clear as possible. Did you testify at a hearing last year, a proceeding last year here in this courtroom that it was about 10 o'clock at night when you finally got the clothing laid out on the butcher paper?
MR. BUKHENIK: Based on the context in the question, I might've estimated to be around 10:00. I would have to take a look at the exact language being used.
MR. JACKSON: That's fair. I'm not trying to hold you to anything. I just want to make sure we get it as clear as possible.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Highlighted portions, sir. Sergeant, does that refresh your recollection to about the time that you ended up at the office to lay out those items on the butcher paper?
MR. BUKHENIK: That refreshes my memory to my testimony prior.
MR. JACKSON: And that was about your prior testimony, it was about 10:00 p.m.?
MR. BUKHENIK: When asked about what time the items were laid out, I indicated previously it was 10 o'clock, approximately.
MR. JACKSON: You didn't stay there all night with those clothes?
MR. BUKHENIK: No, I did not.
MR. JACKSON: You left the clothes with Michael Proctor, did you not?
MR. BUKHENIK: I can't testify to leaving them quote/unquote with Michael Proctor. We laid them out together in the drying area on the butcher paper, and then at some point, I secured from the office. I don't have a memory if he left with me, or if he remained to do additional tasks in the office to, you know, whatever we had to do.
MR. JACKSON: You indicated that those clothes stayed in that room starting on January 29, 2022, so that they could dry, correct?
MR. BUKHENIK: That's correct, sir.
MR. JACKSON: Ultimately, they were bagged after they were dried, correct? A At some point they were, yes.
MR. JACKSON: Who had access to that room where they were laid out on butcher paper in those intervening -- those subsequent days?
MR. BUKHENIK: Anyone that had access to the office with the proper key card authorization would have access to that area.
MR. JACKSON: And of course, that includes you as a supervisor, correct?
MR. BUKHENIK: It does.
MR. JACKSON: It also includes Michael Proctor?
MR. BUKHENIK: It does.
MR. JACKSON: And those items were bagged on February 4; is that right?
MR. BUKHENIK: I don't have a specific memory, but if you can show me a document suggesting that or supporting that statement, I will definitely look at it.
MR. JACKSON: Your Honor, may I inquire of the clerk briefly?
(Mr. Jackson and Clerk McDermott confer.)
MR. JACKSON: Sergeant, while we're looking for this piece of paper. Do you remember looking at the bag that the clothing items were in, at this point just the jeans?
MR. BUKHENIK: Earlier today, sir?
MR. JACKSON: Yes.
MR. BUKHENIK: I do remember looking at the bag, yes.
MR. JACKSON: Okay. And the bag has a label on it, obviously. It was generated when the items were bagged.
MR. BUKHENIK: It has multiple labels, yes.
MR. JACKSON: Okay. Did you see the label today that indicated it was bagged on February 4?
MR. BUKHENIK: I didn't pay attention to it, no.
MR. JACKSON: May I approach, Your Honor?
JUDGE CANNONE: Yes.
MR. JACKSON: If you could take a look at those three pages, briefly. That's a colloquy that may refresh your recollection.
MR. BUKHENIK: I don't know what the colloquy means. Can you --
MR. JACKSON: A back-and-forth conversation.
MR. BUKHENIK: I see. (Witness complies.)
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you, sir. Did reviewing that document refresh your recollection as to the date that those items were ultimately bagged and labeled?
MR. BUKHENIK: Yes, based on the tag on the bag when I previously looked at it, it appears that the tag was printed on 2/4/22.
MR. JACKSON: And that would be consistent with the time that the items are actually placed in the bag?
MR. BUKHENIK: I don't know that to be true.
MR. JACKSON: Because you didn't place them in the bag, Trooper Proctor did, correct? I'm sorry former Trooper Proctor did.
MR. BUKHENIK: I don't who placed them in the bag.
MR. JACKSON: But it wasn't you?
MR. BUKHENIK: It was not me, no.
MR. JACKSON: But the case officer, Mr. Proctor, had access to that room and was taking control over those clothing items for those six days that they were drying on butcher paper, correct?
MR. BUKHENIK: That's not necessarily correct. It could have been the evidence officers bagging the evidence once it's dried and processing it. I highly doubt Trooper Proctor had access to the beast machine to print that tape -- label.
MR. JACKSON: Right. I'm not asking if he printed the label. I'm asking if he bagged the item and walked it up to the evidence locker and the label was printed up there.
MR. BUKHENIK: Again, I don't know who bagged the items.
MR. JACKSON: That would be normal protocol, correct?
MR. BUKHENIK: Somebody else bagging the items?
MR. JACKSON: No. The case officer bagging the items. He's the one that seized it along with you. He laid them out on the butcher paper, along with you. He would be the one to gather them up -- I mean the evidence officer is not going to come done there and do that without the case officer, correct?
MR. BUKHENIK: Not necessarily. The evidence officer's responsibility is to handle the evidence. So I don't know who handled the evidence that day.
MR. JACKSON: How would the evidence officer know to go down there? How would he know that there were clothing items being laid out to dry on butcher paper unless the case officer told him?
MR. BUKHENIK: They would walk by it every day and see it. That's their workstation.
MR. JACKSON: Right.
MR. BUKHENIK: So they would know that, hey, this evidence is drying. There's only four detectives in the office at the time working on this case. We communicate daily. So they would know that, hey, it's dried. Let's bag it up.
MR. JACKSON: Well that's a lot of speculation, especially for the supervisor who literally who just I have no idea who bagged that up. They weren't communicating with you, were they?
MR. BUKHENIK: I was giving you an explanation of what could have happened.
MR. JACKSON: Right. Speculation about what could've happened, right?
MR. BUKHENIK: Well, he certainly did not bag that item.
MR. JACKSON: Right. But your best estimate would be, knowing the protocols at the MSP and in your unit, would be the case officer who's controlling the items of evidence would have bagged it and submitted it into the evidence locker?
MR. BUKHENIK: I do not know who bagged it.
MR. JACKSON: Sir, for six days anybody who had access to that room could have handled that clothing in any way they wanted to?
MR. BUKHENIK: That's correct.
MR. JACKSON: And that includes former trooper Michael Proctor?
MR. BUKHENIK: That's correct.
MR. JACKSON: Do you have any kind of log do document what was happening or who was handling those items of clothing during that six day period before it was bagged into evidence? Any kind of a log?
MR. BUKHENIK: I don't have a document logging the clothing laying out there. It was documented in reports in processing, I believe.
MR. JACKSON: Have you ever seen a log, I'm not talking about a report after the fact, I'm talking about a log, a real-time log indicating who may have come in and handled or touched or manipulated those clothes in that six day period of time?
MR. BUKHENIK: I have never seen a log like that, no.
MR. JACKSON: The fact is we don't have a single document establishing the chain of custody for those items between January 29, and February 4. That's correct, isn't it?
MR. BUKHENIK: That is absolutely not correct.
MR. JACKSON: Where is the log, the document logging what happened to it?
MR. BUKHENIK: We seized the clothing. It was in our possession. It was transferred for processing.
MR. JACKSON: Sergeant, I'm asking you about a log, a written piece of paper, something that looks like this. It's got writing on it. It logs the item between from January 29, and February 4. That doesn't exist, does it?
MR. BUKHENIK: We did not create a log to document the documentation, so it would be redundant, really.
MR. JACKSON: You indicated on direct examination that you personally participate in two searches at 34 Fairview Road, one on February 4, one on February 10; is that right?
MR. BUKHENIK: That is not right.
MR. JACKSON: What did I get wrong?
MR. BUKHENIK: I was also there on the 3rd. Third, fourth and tenth.
MR. JACKSON: What did you -- who did you go with on the 3rd?
MR. BUKHENIK: That was Trooper DiCicco, Michael Proctor and I conducting the first excavation.
MR. JACKSON: And about what time was that?
MR. BUKHENIK: It was during the early morning hours. I think earlier I said it was somewhere between 8:30, 9:00, 9:30. It could have been half an hour later. I'm not exactly positive on the exact time we began the excavation.
MR. JACKSON: And the other two searches were the next day February 4, and then February 10?
MR. BUKHENIK: The next time I was at Fairview Road and involved -- and involved in a collection of evidence was on the 4th, when Canton PD documented the one piece, and I collected, and then the 10th.
MR. JACKSON: May I have just a moment, Your Honor?
JUDGE CANNONE: Okay.
MR. JACKSON: Was anything recovered on February -- let's take them in order, on February 3?
MR. BUKHENIK: Yes, Mr. O'Keefe's hat, a straw. I believe red and clear plastic taillight pieces. There was -- those are the items that were recovered amongst --
MR. JACKSON: All right. Okay. What about the 4th?
MR. BUKHENIK: The 4th was the taillight -- red taillight piece, that we displayed I believe, that Canton PD notified me of when I was already on route there.
MR. JACKSON: When you say Canton PD, who was it that notified you, if you remember?
MR. BUKHENIK: There was at the scene there was Chief Berkowitz, a couple of detectives.
MR. JACKSON: Sergeant Lank, does that sound right?
MR. BUKHENIK: I do not know. I can't say yes or no. I don't recall specifically. It was raining hard so I grabbed the item and left.
MR. JACKSON: Okay. Did you write a report -- I'm going to combine these into all three days together. Did you write any report -- actually won't do that. Let me ask them individually. Did you write any report about your search on the 3rd?
MR. BUKHENIK: Somebody authored a report. I'm not sure --
MR. JACKSON: I'm asking about you?
MR. BUKHENIK: I can't. There's over 100 reports. I'd have to take a look which report documents my activity that day.
MR. JACKSON: Do you remember, as you sit here, authoring a report about your conduct or your activity on February 4, the next day?
MR. BUKHENIK: I don't have a memory of it, no.
MR. JACKSON: Do you have a memory of authoring a report yourself about your conduct on February 10, activity on February 10?
MR. BUKHENIK: I don't have a memory of it. It could have happened. I just don't have a memory of it.
MR. JACKSON: The reality, Sergeant, is that no report was written about any of these searches until November 4, 2023, correct?
MR. BUKHENIK: That could be possible, yes.
MR. JACKSON: So literally the documentation of these three searches about which you testified today, the documentation did not exist until what is that math, 17, 18 months later?
MR. BUKHENIK: That is not true. Each bag that the evidence went into was documented. The time, location, who recovered it, where it was recovered and brief description of the items that were recovered from the scene.
MR. JACKSON: By the way, we're going to get that in a second the evidence bags. A report is designed to memorialize exactly what happens, when it happens, why it happened, who is there, what time it happened, things of that nature, correct?
MR. BUKHENIK: That is one of the purposes or some of the purposes behind a report, absolutely, yes.
MR. JACKSON: And the report in this case that documented these three searches involving you, Trooper Proctor, and DiCicco, Trooper DiCicco, even Canton PD officers, there was no memorialization in a report until nearly eighteen months later; is that right?
MR. BUKHENIK: It's possible, yeah. We write reports at different times, yeah.
MR. JACKSON: I want to ask you about this February 4, visit to the crime scene. You indicated that sometime in the morning 8:45, 9:00 a.m., something like that, you responded?
MR. BUKHENIK: On the 4th, sir?
MR. JACKSON: On the 4th.
MR. BUKHENIK: I was driving to work so I would have to say 45 or so. Yeah, I mean I don't have the exact time stamp, but, if you know, if you have something to refresh my memory, I could tell you if that's accurate.
MR. JACKSON: I'm not going to hold you to the exact. It was in the morning.
MR. BUKHENIK: It was. It was.
MR. JACKSON: Did you know the chief of police Ken Berkowitz before you responded on the 4th to 34 Fairview?
MR. BUKHENIK: Yes, I knew who we was. I had met him previously, and he was present on the 29th when the vehicle was delivered to the sally port.
MR. JACKSON: He was actually in the sally port at least at some time when the vehicle was delivered, correct?
MR. BUKHENIK: He was there at some point. I had a conversation with him.
MR. JACKSON: Okay. Tall guy, short guy?
MR. BUKHENIK: Chief Berkowitz was a shorter guy.
MR. JACKSON: Do you know who Brian Higgins is?
MR. BUKHENIK: I do.
MR. JACKSON: What's your relationship to Brian Higgins? Or what was it, I should be more pointed to this, Sergeant, what was your relationship back in 2022, January of 2022?
MR. BUKHENIK: Brian Higgins was a federal agent, and I crossed paths with him on a couple of investigations. Strictly professional relationship, a federal agent and a state trooper.
MR. JACKSON: So not a personal relationship, more of a professional relation?
MR. BUKHENIK: Correct.
MR. JACKSON: Did you know him to have a personal relationship with Chief Berkowitz?
MR. BUKHENIK: I did not know.
MR. JACKSON: Did Brian Higgins actually tell you and Michael Proctor in an interview that he had a personal relationship with Chief Berkowitz. He called him one of his better friends?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained. Ask it differently.
MR. JACKSON: Sure.
MR. JACKSON: During the course of your investigation, did you learn, although you may not have personal knowledge of it, did you learn that Brian Higgins and Chief Berkowitz had some sort of a personal relationship?
MR. BUKHENIK: If you show me a report stating that, I would like to take a look. If it's written in a report authored by me or that I authorized -- approved, I will take it for to be fact.
MR. JACKSON: As you sit here now, you don't have a memory of that conversation with Brian Higgins?
MR. BUKHENIK: Do I have a memory of having causation with him and him sharing that information with me?
MR. JACKSON: That's it.
MR. BUKHENIK: I don't have a memory of him sharing that information, but if you have a report that was authored by me or Michael Proctor or any trooper in our office that says that, I will take it as gospel and testify to it.
MR. JACKSON: Okay. Well, I don't want to take up more time, but we'll look for it. We'll put our hands on that, but in the meantime, let me ask you a few other questions. You were contacted and told to respond to 34 Fairview Road because Chief Berkowitz had been driving by and saw something while he was driving by, correct?
MR. BUKHENIK: On which day, sir?
MR. JACKSON: February 4?
MR. BUKHENIK: I'm sorry?
MR. JACKSON: February 4.
MR. BUKHENIK: Yes, he indicated that he was driving by and saw a piece of potential evidence.
MR. JACKSON: And he was driving by in a car at speed, correct?
MR. BUKHENIK: I would take that to be factual. I mean, if he's driving by, I would take it to be in a car that speed.
MR. JACKSON: And did you question Chief Berkowitz about -- by the way, about how old was Chief Berkowitz when you met him out at 34 Fairview in 2022?
MR. BUKHENIK: How old?
MR. JACKSON: How old. Estimate. Was he in his 50s, 60s, 70s?
MR. BUKHENIK: I have no idea how old Chief Berkowitz was.
MR. JACKSON: He indicated to you that he was driving by and saw a small piece of red taillight from his car; is that right?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: He indicated to you that he was driving by and saw a red something from his car, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you question Chief Berkowitz after you learned this information about him driving by, did you question Chief Berkowitz about how he could possibly see a piece of red plastic from his car?
MR. BUKHENIK: No.
MR. JACKSON: Did you question Chief Berkowitz about why he was driving by 34 Fairview in the first place?
MR. BUKHENIK: No.
MR. JACKSON: Did you question Chief Berkowitz about the fact that his department had been conflicted from the case, at least in part, because of, as you put it, a perceived or a possible perception of a conflict of interest?
MR. BUKHENIK: I'm sorry. Repeat that question, please.
MR. JACKSON: Did you question Chief Berkowitz about whether or not he was aware that there was a conflict of interest between Canton PD and this investigation?
MR. BUKHENIK: No, I didn't question, no.
MR. JACKSON: Did you think that was important at the time to talk to about that conflict of interest?
MR. BUKHENIK: No.
MR. JACKSON: Because just days earlier, Sergeant, the Canton Police Department had in fact recused itself from interviews because of a potential conflict of interest, right?
MR. BUKHENIK: To prevent any perceived conflict of interest, they recused themselves from being involved in interviews. I wasn't pairing up with Chief Berkowitz to interview the taillight piece. I mean, I don't --
MR. JACKSON: No, I didn't figure that you were going to interview the taillight piece. We all get the comment. I'm trying to get to a point. Three or four days after, five days after, six days after, Canton PD recuses itself from the investigation, at least parts of the investigation, because of a perceived conflict of interest, the brother of the homeowner being a detective, the chief of that department drives by in a car and supposedly sees a piece of plastic?
MR. BRENNAN: I object to the question.
JUDGE CANNONE: I'm sorry?
MR. BRENNAN: I object.
JUDGE CANNONE: Sustained.
MR. JACKSON: It was your understanding at least at the time that the whole purpose of the recusal was so that there would not be a perception of a conflict of interest to avoid that.
MR. BUKHENIK: I didn't give it much thought of the understanding why there was a recusal. I was told that they're not going to conduct interviews with us, and me being on the mission of conducting this investigation, assisting with this investigation, collecting evidence, I just knew I needed more manpower, and the Canton police, being, you know, having recused themselves, weren't going to be available to provide that manpower to conduct interviews.
MR. JACKSON: And yet, it was the chief of that very department that was standing out in front of 34 Fairview when you pulled up that morning?
MR. BUKHENIK: With his detectives, they were at the location. They weren't standing outside. They were in their vehicles because it was raining really heavily.
JUDGE CANNONE: Can we end at this?
(Testimony ends at 3:54 p.m.)