Commonwealth v. Read — Trial ArchiveYuri Bukhenik - Cross (Part 3)
982 linesCOURT OFFICER: You are unmuted. Let's now open.
JUDGE CANNONE: All right. Good morning. I came into three motions that I did not have when I checked email before coming to court today. So, I'll hear you quickly on these. I've had a chance to read them. So, Mr. Brennan, I'll hear you. Let's today focus on the Bowden ones. We can focus on the other one later.
MR. BRENNAN: My motion memorandum on Bowden just iterates my objections continuously at sidebar — that not all evidence is admissible. Characterization of evidence is not admissible, and the defense should have the ability and intention to follow up with substantive proof if they're going to ask a question. It's not limitless. Bowden is wide parameters to ask the investigator about their state of mind, about the scope of the investigation, but it has boundaries of reasonableness, and my earlier objections about offering information that go beyond Bowden delve into third-party inadmissible evidence. Those objections are what compelled me to draft this motion, and I can continue and will continue to object during the case.
MR. BRENNAN: But once the questions are asked, if they're improper, the jury hears them, it inflames the jury. And without a basis and an intention to follow it up with substantive proof, the question should not be asked.
JUDGE CANNONE: So the one point I want you to focus on, Mr. Brennan, is the specific evidence regarding materials that Sergeant Bukhenik has not been able to look at.
MR. BRENNAN: You want me to? Is that something we can do here in open court, or, based on the protective orders, is that something that should be done at sidebar?
JUDGE CANNONE: Sidebar. All right. Why don't you come up, Mr. Jackson? Let's bring in the jury. Will that take a couple minutes? Okay. Thank you.
COURT OFFICER: All eyes, please.
COURT CLERK: You are unmuted. Hear ye, hear ye, hear ye. All persons having any business before the Honorable Beverly Cannone, Justice of the Norfolk Superior Court — [unintelligible] — draw near and you shall be heard. God save the Commonwealth of Massachusetts. This court is now open. You may be seated.
JUDGE CANNONE: All right. Good morning again, counsel. Good morning, Miss Read. Good morning, J. We appreciate your patience this morning. We're trying really hard to cut back on the sidebar conferences. So, we spent some time this morning, hopefully paving the way for that to be able to happen. So, we do appreciate your patience. I would like to ask you those questions. Were you all able to follow the instructions and refrain from discussing this case with anyone since we left here? Everyone said yes and nodded affirmatively. Were you also able to follow the instruction and refrain from doing any independent research or investigation into this case? Everyone said yes and nodded affirmatively. Did anyone happen to see, hear, or read anything about this case since we left here? Everyone said no.
JUDGE CANNONE: Thank you. Could we have Sergeant Bukhenik again, please? And Mr. Jackson, you can go to the podium.
MR. JACKSON: Thank you, honor.
JUDGE CANNONE: That's okay. I'll remind you you're —
MR. BUKHENIK: Thank you. Good morning.
JUDGE CANNONE: All right, Mr. Jackson, whenever you're ready.
MR. JACKSON: Thank you, your honor. Good morning, Sergeant.
MR. BUKHENIK: Good morning.
MR. JACKSON: I'd like to ask you, just to start off with — at some point during the course of your investigation, did you become aware that a snowplow driver had reported having seen a Ford Edge being moved into a location in front of 34 Fairview sometime in the early morning hours of January 29th, 2022?
MR. BUKHENIK: We learned about a plow truck driver. I don't believe his recollection was as you described, though.
MR. JACKSON: Do you remember him mentioning a Ford Edge?
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. And do you remember him saying that the Ford Edge had been moved?
MR. BUKHENIK: He had passed by. It wasn't there. At some point he passed by again and it was there, impeding his plow route. Yes.
MR. JACKSON: Okay. What is your best memory about when he said he believed the Ford Edge — sorry, I guess a better way to put it is, when did he say he first saw the Ford Edge in place in front of 34 Fairview?
MR. BUKHENIK: I don't remember exactly. I know it was during the middle of the night. My not adopting your narrative was the fact that he saw it being moved there.
MR. JACKSON: Understood. I figured that — I clocked that one as soon as I said it. He didn't see it moved. He saw 34 Fairview without it there. Then about an hour later, it was there, I believe. So, yes. Okay. Would about 3:30 in the morning sound right to you, in terms of what he reported, in terms of the time that he saw it there?
MR. BUKHENIK: It sounds right, but I'm not sure of the exact time. My report would reflect the accurate time.
MR. JACKSON: Fair enough. Let me see if I can grab that report. Let me ask this. Well, it's a very lengthy report. Instead of making you sit there and wait, let me just ask this. Do you remember him saying that he had first plowed the area free of the Ford Edge? In other words, first passed in front of 34 Fairview around 2:30 in the morning. Does that sound right?
MR. BUKHENIK: I believe his dispatch time for the plowing of the roads that evening was 2:30, but I again would have to look at my report.
MR. JACKSON: That's fine. And then it was sometime subsequent thereto that he saw the Ford Edge in place. Maybe an hour later.
MR. BUKHENIK: Sounds about right. Again.
MR. JACKSON: Okay. Did you take any investigative steps when you learned about this snowplow driver to determine who, if anyone, might have owned a Ford Edge associated with 34 Fairview?
MR. BUKHENIK: I did not know.
MR. JACKSON: Did your investigation ever reveal that the Albert family actually had a Ford Edge at the time?
MR. BUKHENIK: Yes.
MR. JACKSON: I want to shift gears for a second to One Meadows, if I could, and Ring video evidence associated with One Meadows. You testified on direct examination that there was no video from Ring at or around 12:36 a.m., when Miss Read's SUV returned back to One Meadows. Do you remember that testimony?
MR. BUKHENIK: Yes.
MR. JACKSON: You did receive a search warrant return from the Ring Corporation in furtherance of a search warrant executed by Trooper Proctor. Correct.
MR. BUKHENIK: Former Trooper Proctor. Evidence was returned by Ring. Yes.
MR. JACKSON: And in addition to the actual video recordings, there was also an activity log that was returned associated with that time and that location from the Ring Corporation. Correct.
MR. BUKHENIK: There was a key log identifying each video that was provided, by the time and date when the video was recorded. It's not an activity log per se for the account. It's strictly a key describing the video, telling you what time the video was recorded.
MR. JACKSON: During the entirety of your investigation, was there any evidence uncovered at all that Miss Read had accessed the account information associated with that Ring account?
MR. BUKHENIK: No evidence could be provided by Ring documenting that activity, but there is evidence that someone had accessed the account through John O'Keefe's cell phone. Correct.
MR. JACKSON: I am not aware of that. Are you aware that after John O'Keefe's cell phone was recovered by Massachusetts State Police, someone at Massachusetts State Police actually opened the Ring app on his cell phone?
MR. BUKHENIK: Yes.
MR. JACKSON: Who is the person who opened and accessed the Ring app on John O'Keefe's cell phone?
MR. BUKHENIK: I'm not 100% sure.
MR. JACKSON: I have just a moment, your honor.
JUDGE CANNONE: Yes.
MR. JACKSON: I'm going to refresh your recollection — to take a look at a report, perhaps. May I approach?
JUDGE CANNONE: Yes.
MR. BUKHENIK: It doesn't.
MR. JACKSON: Okay. If you could take a look at that three-page report and tell me if that refreshes your recollection. May I approach, Your Honor?
JUDGE CANNONE: Yes. Sergeant. Having looked at this report, does that refresh your recollection as to who may have accessed that Ring app?
MR. BUKHENIK: Yes, that report is authored by Michael Proctor, and it says that investigators accessed the Ring application.
MR. JACKSON: Thank you. I want to show you one other document if I could.
MR. BUKHENIK: Thank you.
MR. JACKSON: Thank you. I've just handed you what purports to be the search warrant return for the Ring from the Ring Company. Correct.
MR. BUKHENIK: I've got to take a look through all of it.
MR. JACKSON: Of course. Take your time. Thank you, Sergeant. Have you had an opportunity to review that document?
MR. BUKHENIK: I have.
MR. JACKSON: Does it indicate that in addition to several other files, there is a login session report that was produced by the Ring Corporation as well?
MR. BUKHENIK: It's highlighted on that page. Number four is highlighted with one Excel file containing login session information.
MR. JACKSON: Thank you. May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. And again, just to make sure I'm very clear about this — nothing from the Ring Corporation suggested or intimated that Miss Read actually accessed any of that Ring account information. Correct?
MR. BUKHENIK: The information provided did not indicate that. No.
MR. JACKSON: Thank you. I want to ask you a couple of questions about your testimony on direct examination related to your trip to the hospital and your observation specific to Mr. O'Keefe's right arm. You indicated that you saw bruising on his right arm in addition to the abrasions — the parallel abrasions — that you described. Correct?
MR. BUKHENIK: I believe bruising is very similar to abrasion.
MR. JACKSON: Okay, that's my question. Can we — your honor, can we, with the court's permission, show Exhibit 1? It's already been introduced. Is this a fair and accurate depiction of what you saw in terms of the condition of Mr. O'Keefe's arm while at the hospital, if not exactly like this?
MR. BUKHENIK: Yes, it is.
MR. JACKSON: Okay. What did you mean when you said you saw bruising on his arm? What were you talking about?
MR. BUKHENIK: I actually indicated bruising on his right hand, the back of his right hand.
MR. JACKSON: Okay, fair enough — from his wrist. When I say arm, can we agree, at least for the purposes of this discussion, that I mean from the wrist up to the shoulder?
MR. BUKHENIK: Mhm.
MR. JACKSON: Did you see any bruising from the wrist to his shoulder?
MR. BUKHENIK: I saw exactly what's depicted there with the abrasions and lacerations.
MR. JACKSON: Okay. You know what lividity is, correct?
MR. BUKHENIK: I do.
MR. JACKSON: Describe for the jurors what lividity is.
MR. BUKHENIK: Lividity is the pooling of blood inside the body. As a deceased individual falls or is positioned naturally with gravity, blood begins to settle in the lowest portions of the body. If you're laying face down, it would be your face. It also contours to the imprint or the force that's exerted on the body from below. If someone's deceased on a TV remote control, you can see the remote control, the buttons underneath from the pressure. So it's a bluish-purplish discoloration of the skin, not from an impact, but from the pooling of blood after the heart stops.
MR. JACKSON: Correct.
MR. BUKHENIK: That's correct.
MR. JACKSON: Do you see an area at the upper arm where the skin looks discolored, in addition to the abrasions that we see?
MR. BUKHENIK: I'm sorry. I was looking at that one. Can — oh, sure.
MR. JACKSON: Right up toward the upper biceps/triceps area.
MR. BUKHENIK: I see that area. Yes.
MR. JACKSON: Is that consistent with lividity rather than bruising?
MR. BUKHENIK: I would not agree with that. No.
MR. JACKSON: You believe that that's a bruise?
MR. BUKHENIK: I believe that that's a laceration.
MR. JACKSON: I'm sorry — I'm talking about the discoloration of the skin, the reddish-purplish hue of the skin, separate and apart from the abrasions or lacerations to the skin, the discoloration. Do you see that discoloration?
MR. BUKHENIK: No, I do not know.
MR. JACKSON: You do not?
MR. BUKHENIK: I do not know.
MR. JACKSON: Okay, we can take that down. As you sit here today, you're not suggesting that you saw bruising from the wrist to the shoulder on John O'Keefe's arm.
MR. BUKHENIK: Nothing that stood out to me. I observed lacerations and abrasions.
MR. JACKSON: All right. Thank you. I want to shift gears one more time and ask you about your trip to Dighton and the seizure of the SUV. You testified that you seized the SUV somewhere — I think your testimony on direct examination was somewhere around 4:15, 4:17, something like that. Correct.
MR. BUKHENIK: Yes, sir.
MR. JACKSON: Does 4:12 sound like it could be a reasonable time that that SUV was actually seized and in Massachusetts State Police custody?
MR. BUKHENIK: It could be reasonable. I'd have to refer to the video evidence and also the exact time that we advised the defendant that we were going to be seizing it. I guess it could be argued that that's when it was seized — we had the intent to seize it right there, right? Took the key fob, went outside — pardon me — had a tow truck driver actually put it onto the back of a flatbed. Ultimately, it was transported.
MR. JACKSON: Correct.
MR. BUKHENIK: Correct.
MR. JACKSON: And you became aware at some point that there was video evidence — you just referenced it — video evidence of that — I'm going to call it the seizure process. Is that right?
MR. BUKHENIK: Yes.
MR. JACKSON: And that video evidence had a time stamp on it. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. You're also aware, as the supervisor of Michael Proctor, that he swore under oath in multiple affidavits in support of search warrants that the SUV was seized at 5:30 p.m. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: And you knew at the time, because you were actually there and you knew when the vehicle was seized, that stating under oath in an affidavit that it was 5:30 p.m. and not 4:12 p.m. — that was a false statement. Correct.
MR. BUKHENIK: There's a discrepancy in time there. Yes.
MR. JACKSON: Did you take any action — you yourself, as a supervisor — did you take any action to correct that false or misleading state— let me ask it a different way. Did you take any action to correct that time to the accurate time of 4:12 in any of the affidavits that you became aware of?
MR. BUKHENIK: No. The actual time of the seizure through the video we learned much later. So the approximate time of 5:30, although inaccurate, I did not take any action to correct it. No.
MR. JACKSON: And you received that video as a production from the defense. You did not have access to that video, correct?
MR. BUKHENIK: Yes.
MR. JACKSON: And so at the time that Michael Proctor actually wrote and drafted these affidavits and swore to them under oath, he did not know that a video existed.
MR. BUKHENIK: Correct.
MR. BRENNAN: Objection.
JUDGE CANNONE: You'll have to word it differently.
MR. JACKSON: Sure. At the time that you — let me ask it a different way. At the time that you reviewed his declarations under oath, you did not know that a video existed.
MR. BUKHENIK: No, we did not know.
MR. JACKSON: If I may have just a moment, your honor.
JUDGE CANNONE: Sure.
MR. JACKSON: I want to ask you about something that was brought up on direct examination — sustained findings. As it pertains to you — you've already talked about the fact that, Sergeant, you're a supervisor and were a supervisor back in January of 2022 moving forward, over Trooper Proctor. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: Generally speaking, as a supervisor, your job is to properly and professionally supervise — show some authority over those in your charge. Is that right?
MR. BUKHENIK: Yes.
MR. JACKSON: Michael Proctor was in fact a trooper in your charge.
MR. BUKHENIK: Yes.
MR. JACKSON: And you would agree that your supervision has a direct impact on the character and quality of the subordinate investigators that you supervise.
MR. BUKHENIK: Yes.
MR. JACKSON: The whole point of having supervision and a chain of command is to establish a certain amount of — for lack of a better phrase — quality control of the subordinates.
MR. BUKHENIK: Yes.
MR. JACKSON: That would also include quality control over the subordinates' investigations.
MR. BUKHENIK: Yes.
MR. JACKSON: On August 17th, 2022, you were in a group text with the following individuals: Michael Proctor, Trooper Kapowski, a lieutenant named Fanning, and a trooper named DiCicco. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: [unintelligible]
MR. BUKHENIK: Yes.
MR. JACKSON: I'm handing you a document. Can you tell me if you recognize that document?
MR. BUKHENIK: I recognize parts of it.
MR. JACKSON: You saw that document on direct examination. I think you were shown the same document. Correct.
MR. BUKHENIK: It was different parts of it, but it's inclusive of — within this document.
MR. JACKSON: Okay. Let's start with this. You indicated that you did not see Michael Proctor's name on that document. Correct.
MR. BUKHENIK: Correct. His name is not on here.
MR. JACKSON: But you do recognize that as being reflective — accurately reflective — of the text chain that you were on on August 17th, 2022, that group chat.
MR. BUKHENIK: Yes, sir.
MR. JACKSON: I'm going to do this a little bit backward, but bear with me. You do see the name Kakowski, correct?
MR. BUKHENIK: I do.
MR. JACKSON: You do see the name Fanning, correct?
MR. BUKHENIK: I do.
MR. JACKSON: You do see the name Dico, correct?
MR. BUKHENIK: I do.
MR. JACKSON: And you do see the name Buchenk, correct?
MR. BUKHENIK: No, it's misspelled, but I know they're probably referencing me.
MR. JACKSON: Okay. The only other person texting on that chain is a code — a lengthy, almost like a URL code — with no name. Correct.
MR. BUKHENIK: Yes. Yes, you're right.
MR. JACKSON: And the only person whose name I did not read off — that's obvious on that document — is Michael Proctor. Correct.
MR. BUKHENIK: Correct.
MR. JACKSON: So deductive reasoning tells you that that code is Michael Proctor. Is that right?
MR. BUKHENIK: I would agree with you. Yes.
MR. JACKSON: Okay. In that text chain, it starts
MR. BUKHENIK: No.
MR. JACKSON: May I approach?
JUDGE CANNONE: Yes.
MR. JACKSON: You could turn to page 2683, please. Do you see a photograph there?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: Okay. Fair enough. There were some texts between and among the group that preceded this photograph. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: I want to start on this date, August 17th, 2022, with this photograph. This photograph was sent by Trooper DiCicco to the group. Correct.
MR. BUKHENIK: It possibly appears that way. I — I really can't.
MR. JACKSON: Your Honor, with permission — um, I'm not sure this document has been marked. I'd like to have this marked and admitted.
JUDGE CANNONE: Sure. We'll mark it for ID.
MR. JACKSON: I'd actually have it marked and admitted. There are certain things I'd like to show.
JUDGE CANNONE: What's counsel's position on that?
MR. LALLY: I have no objection to admission, but not in this form. It needs to be redacted. Can you do it?
MR. JACKSON: I can — what I intend to do, I can do with one photograph. If I may have a moment with counsel.
JUDGE CANNONE: Okay. Just a second. Thank you.
MR. JACKSON: With the court's permission, I'd like to publish just one page of what's been marked for identification.
JUDGE CANNONE: Has it been marked? I'm sorry. You need this. It's Exhibit for ID.
MR. JACKSON: I would ask that the entire document be marked for identification.
JUDGE CANNONE: Yes.
MR. JACKSON: And with the court's permission, I would ask to display — or to publish — page 2683 of that document.
JUDGE CANNONE: So, are you admitting into evidence page 2683?
MR. JACKSON: I would.
JUDGE CANNONE: Do you have a separate one rather than tearing it out of what's been marked for identification?
MR. JACKSON: I can take it out of this copy.
JUDGE CANNONE: And can you redact it before it's admitted, please?
MR. JACKSON: It's been redacted.
JUDGE CANNONE: Okay.
COURT CLERK: Exhibit 116.
MR. JACKSON: May I?
JUDGE CANNONE: Yes.
MR. JACKSON: Thank you. We're talking about the same thing. Sergeant, I've just handed you a page that's been marked Exhibit 116. Do you recognize that as being a copy of one of the multiple pages in the document that you're holding that's been marked for identification as FF?
MR. BUKHENIK: Yes, sir.
MR. JACKSON: Okay. If we could publish that single page, please. Okay. Is that a photograph that was sent by Trooper DiCicco to the group according to this document?
MR. BUKHENIK: Yes.
MR. JACKSON: Who is depicted in that photograph?
MR. BUKHENIK: Uh, [unintelligible], Mr. David Yannetti, criminal defense attorney.
MR. JACKSON: Do you see that person in court?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: Where is he seated and what is he wearing?
MR. BUKHENIK: He's seated right there wearing a blue tie and a dark suit, white shirt.
MR. JACKSON: Thank you. We could bring the lights up, your honor.
JUDGE CANNONE: Okay.
MR. JACKSON: Um, in response to — and going back to the text from Moore — M-O-R-E — correct? There is. And he disliked Trooper Proctor's phrase, the statement "No nudes so far." Correct?
MR. BUKHENIK: That's what it says.
MR. JACKSON: Did that indicate to you that Moore was disappointed that Trooper Proctor, Michael Proctor, had not found naked pictures of Miss Read as yet?
MR. BUKHENIK: I don't know what that indicated for Mr. Moore.
MR. JACKSON: And then you responded to the phrase — [unintelligible] — "I'm going through her phone." Correct?
MR. BUKHENIK: I acknowledged that text message being sent.
MR. JACKSON: You acknowledged it by liking it. Correct. With a thumbs up.
MR. BUKHENIK: I acknowledged it by responding with a thumbs up emoji.
MR. JACKSON: The fact is, Trooper Proctor told you, his supervisor, in this series of text messages, that he was going through Miss Read's phone. Is that right?
MR. BUKHENIK: Correct.
MR. JACKSON: And he also informed you, his supervisor, that he was going through her phone looking for nudes or naked pictures of her on her phone.
MR. BUKHENIK: Correct. He did not tell me that he was going through — uh, for naked pictures through the phone. He wrote "No nudes so far."
MR. JACKSON: Right. That is what is written.
MR. BUKHENIK: Yes.
MR. JACKSON: What did you think he was looking for when he wrote that phrase?
MR. BUKHENIK: I don't know what he was looking for.
MR. JACKSON: What would be a reasonable interpretation of what Michael Proctor was looking for when he wrote "No nudes so far"?
MR. BUKHENIK: I don't know.
MR. JACKSON: Motorcycles? Handbags? A pair of shoes? Or naked pictures of Miss Karen Read?
MR. BUKHENIK: His mission was to go through the phone to look for digital evidence that's related to the crime. The fact that he wrote "No nudes so far," I cannot comment on.
MR. JACKSON: You cannot comment on, or you don't want to comment on?
MR. BUKHENIK: I don't know what he was looking for at that specific time.
MR. JACKSON: You certainly did nothing. You took no action to stop him from potentially looking for naked pictures of my client.
MR. BUKHENIK: Correct. That's correct.
MR. JACKSON: In fact, last week you testified that in your view, Michael Proctor handled himself in this investigation with integrity. That's what you said.
MR. BUKHENIK: Correct. That's correct.
MR. JACKSON: Do you stand by that testimony?
MR. BUKHENIK: The investigation was handled with integrity and honor.
MR. JACKSON: Do you stand by your testimony that Michael Proctor conducted himself during the course of this investigation with integrity?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: He also called her redacted. Correct.
MR. BUKHENIK: That is what's written. That's what's written.
MR. JACKSON: That's a very passive way of saying it, Sergeant. That's what's written, or that's what he wrote?
MR. BUKHENIK: That's what he wrote.
MR. JACKSON: And that's what you read.
MR. BUKHENIK: I have no memory of reading that. I acknowledged him going through the phone on my Apple Watch. I have no memory of him writing that on a text message.
MR. JACKSON: And you'll agree that that is one of the most vile and insensitive and incendiary terms one could use in modern society.
MR. BUKHENIK: Correct. That is correct.
MR. JACKSON: And in fact, through your response to that vile phrase, you encouraged it because you liked it with a thumbs up. Correct.
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Did you encourage that statement by Michael Proctor by liking it with a thumbs up?
MR. BUKHENIK: I don't know if it encouraged him — so I cannot — I cannot speak to that.
MR. JACKSON: But that's what you did.
MR. BUKHENIK: I acknowledged the text message being sent.
MR. JACKSON: I want to be clear. These text messages were sent to you by your direct report, by your direct subordinate.
MR. BUKHENIK: Correct. That's correct.
MR. JACKSON: And there was even someone on that text chain who was more senior than you, Lieutenant Fanning. Right?
MR. BUKHENIK: That's correct.
MR. JACKSON: Michael Proctor. Michael Proctor was both your subordinate and the lead investigator on this case when he wrote that.
MR. BUKHENIK: Correct. He's a subordinate and he was the case officer.
MR. JACKSON: This text thread contains communications between a subordinate — the person you call the case officer. By the way, let me ask you another question. Did you ever, during the course of the investigation in which you were a part — the sustained findings, the internal affairs investigation — did you ever review Colonel Noble's determinations about your subordinate, Michael Proctor?
PARENTHETICAL: [Objection.]
MR. JACKSON: Did you review them?
MR. BUKHENIK: No, your honor, I did not.
JUDGE CANNONE: Okay.
MR. JACKSON: What would Colonel Noble call Michael Proctor's title in this case? You think he'd call him the case officer or the lead investigator? What is your experience with Massachusetts State Police in that regard?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Notwithstanding the fact that a subordinate was on this text chain and a supervisor to you — was Lieutenant Fanning one of your supervisors?
MR. BUKHENIK: Yes.
MR. JACKSON: Notwithstanding the fact that a subordinate was on this text chain and one of your supervisors was on this text chain, you felt comfortable enough within this group of law enforcement to actually like — when the subordinate refers to a suspect as redacted. Correct?
MR. BUKHENIK: I acknowledge the text message with a thumbs up emoji.
MR. JACKSON: Do you believe that? Well, let me ask you another question, a predicate question. You were also comfortable enough with that text chain to receive information that your subordinate was looking for naked pictures on a suspect's phone — a woman, no less.
MR. BUKHENIK: Correct.
MR. JACKSON: You took no remedial action against Trooper Proctor for that.
MR. BUKHENIK: Correct. No, I did not. No.
MR. JACKSON: Do you believe, as you sit here, that that was a misuse of power and authority by a Massachusetts State Police officer?
MR. BUKHENIK: By myself or somebody else?
MR. JACKSON: By Michael Proctor.
MR. BUKHENIK: Misuse of what?
MR. JACKSON: Misuse of authority and power — to go through a suspect's phone, to get her phone using the authority and the power vested in that officer by the community members. That's the power that you've derived. Correct. You work for the public. Would you agree?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you believe it was a misuse of his authority and power to use Massachusetts State Police authority to go through her phone and look for naked pictures of her?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you believe it was a misuse of authority or power to go through her phone and potentially look for nudes?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Let me ask it differently. Did you think his text — his text — was appropriate?
MR. BUKHENIK: I don't remember reading that text.
MR. JACKSON: As you sit here now, do you think that text is appropriate?
MR. BUKHENIK: No, it is not.
MR. JACKSON: Do you think it's professional?
MR. BUKHENIK: No, it is not.
MR. JACKSON: Do you think it shows integrity?
MR. BUKHENIK: That text message does not show integrity.
MR. JACKSON: Do you think it shows honor? A word I — I expect you hold dear.
MR. BUKHENIK: That text message does not show honor.
MR. JACKSON: On October 15th, 2022, you completed a performance review of Michael Proctor. Correct?
MR. BUKHENIK: Correct. That's correct.
MR. JACKSON: Specifically, you were asked to rank his — quote — "oral and written communication skills" — end quote. Correct?
MR. BUKHENIK: Correct. That's part of an overall evaluation and performance review.
MR. JACKSON: Is that right?
MR. BUKHENIK: Yes. Overall — 90-day, quarterly, annual review.
MR. JACKSON: You were specifically asked to rank whether — uh, sorry — whether your subordinates would effectively communicate with others both within and outside the department in oral and written form. Correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: And you rated him as exceptional — a number four rating out of five.
MR. BUKHENIK: Correct. That's correct.
MR. JACKSON: You actually went on to write and comment on Michael Proctor, and you wrote, quote: "Trooper Michael Proctor displays professional demeanor, composure, dignity, and respect during the performance of his duties and especially during his interactions with the public. This is seen during interviews with witnesses, suspects, as well as victims and their families." End quote. That was a statement you wrote about Michael Proctor.
MR. BUKHENIK: Correct. That is correct.
MR. JACKSON: And this is after the text chain that we've just been talking about, where he calls Miss Read redacted and references looking for nude photographs of her. Correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: Was your statement in that evaluation... true or false?
MR. BUKHENIK: It was true.
MR. JACKSON: You knew Michael Proctor's proclivities.
MR. BUKHENIK: Obviously, he told them to you, correct?
MR. JACKSON: Uh, the term proclivities — you knew what he tended to do, what he wanted to do, through his own comments to look for nudes on a woman's phone. Correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You were aware, sir, that he had received evidence in a case — evidence that doesn't belong to him, belongs to the Massachusetts State Police, at least at that point. Correct. The cell phone.
MR. BUKHENIK: I was aware that he received a cell phone. Yes.
MR. JACKSON: And he used that power and the authority to go through that cell phone and look for nudes of my client.
MR. BUKHENIK: Correct.
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: During the same course of your evaluation, you were also asked to evaluate his investigative ability. Correct.
MR. BUKHENIK: That's correct.
MR. JACKSON: You rated him the highest standard in the Massachusetts State Police — outstanding, a five. Correct.
MR. BUKHENIK: That's correct.
MR. JACKSON: And you went on to write about Michael Proctor in the commentary below that rating to justify it. Is that right?
MR. BUKHENIK: That is accurate. Yes.
MR. JACKSON: You wrote, quote, "Trooper Proctor has had a high-profile case load with a lot of eyes and pressure from external sources during the first day of the investigation. He handled himself and all the cases with utmost professionalism and competence. He is able to investigate his cases thoroughly and with strict integrity." End quote. Correct.
MR. BUKHENIK: Uh, which quarterly review was this?
MR. JACKSON: This is the same one. October 2022. Is that right?
MR. BUKHENIK: Those are your comments. That sounds very accurate. I just was not sure which quarterly review that was for.
MR. JACKSON: Professionalism. Do you believe that he acted in accordance with the highest standards of professionalism?
MR. BUKHENIK: During his 90-day performance?
MR. JACKSON: Yes. And you didn't just say he displayed professionalism. You said utmost professionalism. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: Competence. Do you believe he displayed
MR. BUKHENIK: Competence? Yes.
MR. JACKSON: And not just integrity — he conducted himself, as you've put it, with strict integrity. Is that right?
MR. BUKHENIK: That is correct.
MR. JACKSON: Did it show integrity in your view when your subordinate, Michael Proctor, called Miss Read —
MR. BRENNAN: Objection.
MR. BUKHENIK: I believe that as a US citizen, he has the right to comment. That's his first amendment right. Um, we uphold the constitution and, um, it's unfortunate, unprofessional what he said in the private text message communication. He might have been voicing his frustrations. I cannot speak for Michael Proctor. It is unprofessional and unfortunate that he said that.
MR. JACKSON: This was not, Sergeant Bukhenik, a private text message conversation. This is his boss, and one of whom it was amongst members of the unit. He was updating his boss about what he was doing in furtherance of the investigation — going through her phone. Correct?
MR. BUKHENIK: No, I would disagree with you on that. Um, he — this was a group chain, uh, text message chain that we were discussing private matters in our lives, personal lives, private matters, including going through Miss Read's phone. That is unfortunate he shared that on that group text.
MR. JACKSON: So in other words, to the public — to the public he holds one face; in private conversations with you and your colleagues within the unit, he shows a completely different face — a private face. Correct?
MR. BRENNAN: Objection.
MR. JACKSON: You said that — you believe that he has a constitutional right, a first amendment right, to call Miss Read — a suspect in his official investigation, in his official capacity as a Massachusetts state trooper — to call her — that's your justification?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Do you justify his statement — that vile statement?
MR. BUKHENIK: I do not. No.
MR. JACKSON: Do you think it's appropriate given the fact that he has a first amendment right to say whatever he wants?
MR. BUKHENIK: No, I do not.
MR. JACKSON: Do you think there actually might be members of the community — parents, siblings, children —
MR. BRENNAN: Objection.
JUDGE CANNONE: Mr. Jackson, I'm going to exclude that question as argumentative. Move on.
MR. JACKSON: You wrote in your report — if I may have a moment, your honor — you wrote in your report about his conduct: "He shows composure, dignity, and respect during the performance of his duties and especially during his interactions with the public." He has a duty to the public, to the community that he serves. Correct.
MR. BUKHENIK: Yes, he does.
MR. JACKSON: Just like you have a duty to the public and the community that you serve. Is that right?
MR. BUKHENIK: That is correct.
MR. JACKSON: Do you think community members might take offense to the use of the word —
JUDGE CANNONE: Sustained. It's argumentative again, Mr. Jackson. Please don't do that.
MR. JACKSON: He didn't just — that derogatory comment. He didn't just put it, or he didn't just say it. Correct?
MR. BUKHENIK: Correct.
MR. JACKSON: You talked about the first amendment.
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: I'm going to finish with my question if I could.
JUDGE CANNONE: All right. So just ask a question.
MR. JACKSON: Sure. My question is: did he just say the word, or did he go further than just saying it?
MR. BRENNAN: Objection.
JUDGE CANNONE: Okay. We've gone through this. Move on, please.
MR. JACKSON: The fact is, Sergeant, you put it in writing and you liked it. Correct.
MR. BUKHENIK: I acknowledge the text message. I never saw the vile term.
MR. JACKSON: May we approach, just very briefly, for a scheduling issue?
JUDGE CANNONE: Okay. Jurors, feel free to stand up and stretch. We probably should have given you a break before this, but I thought — if that was going to be quick — why don't we take the morning recess?
COURT OFFICER: All rise for the jury.
JUDGE CANNONE: You may proceed. Okay. So, Mr. Jackson, I've considered your argument, and, um, this is simply the wrong witness. So, I'm not permitting that line of testimony — for the request that I made, even for that. So, all right. I think the jurors are —
COURT OFFICER: All rise for the jury.
JUDGE CANNONE: Thank you. School is in session. Please be seated. Go ahead whenever you're ready.
MR. JACKSON: Thank you, your honor. Uh, Sergeant, I'd like to move to a different area. At some point during the course of your investigation, you and Michael Proctor interviewed Chris and Julie Albert. Correct.
MR. BUKHENIK: That's correct.
MR. JACKSON: That was at the Albert residence — the Chris and Julie Albert residence. Is that right?
MR. BUKHENIK: Yes.
MR. JACKSON: On or about February 10th, 2022. Does that sound right?
MR. BUKHENIK: It does.
MR. JACKSON: Okay. At any point before or during that interview, did Michael Proctor discuss with you a previous relationship that he and/or his family had with Chris and Julie Albert or their family?
MR. BUKHENIK: Uh, yes. As we were walking up to the door, um, he stated that he knows them from — he knows of them from around town, and, uh, through a friendship.
MR. JACKSON: Did that cause you any concern that the case officer that had been assigned to the case — dealing with, obviously, the Albert family — had a pre-existing familiarity or relationship with any members of the Albert family?
MR. BUKHENIK: Yes. I followed up asking him if he hangs out with these people, how well he knows them, and he stated that he does not hang out with them. Uh, they're not his friends. He just happens to know them through people in town.
MR. JACKSON: Did he tell you any specifics about communications he had had related to Chris and Julie Albert?
MR. BUKHENIK: No, he did not.
MR. JACKSON: Did he tell you any specifics about communications — Michael Proctor had with his sister — as it pertained to Chris and Julie Albert?
MR. BUKHENIK: No.
MR. JACKSON: Did he volunteer any information about the relationship that he might have, or his family might have, including his wife, with Chris and/or Julie Albert?
MR. BUKHENIK: That information did not come up.
MR. JACKSON: Did you ever later learn — now I'm taking it outside of your conversation with Michael Proctor — did you ever later learn about a friendship or connection that he and his family, Michael Proctor's family, had with Chris and Julie Albert or the
MR. BUKHENIK: Albert family? I've learned of accusations. I don't know the extent of how familiar they are.
MR. JACKSON: What accusations have you learned through trial or through court proceedings? Right. What are they? Give me the nature of what you've learned.
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained. We need a time frame.
MR. JACKSON: Sure. When did you learn of this information?
MR. BUKHENIK: That was July of 2023, I believe.
MR. JACKSON: And what were the circumstances in which you gained this knowledge?
MR. BUKHENIK: There were accusations that Michael Proctor had a familiar friendship with these individuals, but the accusations were not factual.
MR. JACKSON: Did you learn any specifics of the allegations? You use the word allegations — or I think you used the word accusations. Yes. Were there any specifics?
MR. BUKHENIK: There were.
MR. JACKSON: You just said that. What were some of the specifics?
MR. BRENNAN: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Well, by the way, did you say that you learned of these accusations during the last proceeding in this case?
MR. BUKHENIK: Not the last proceeding or prior proceeding in this case. It was through court proceedings.
MR. JACKSON: Okay. How did you learn that specifically, Sergeant? Did you watch some of the proceedings? Were they televised? Did someone report it to you? What were the circumstances?
MR. BUKHENIK: I was present in court.
MR. JACKSON: This was what year?
MR. BUKHENIK: 2023.
MR. JACKSON: Yes. And did you take any action to investigate further the accusations that you said came up in 2023?
MR. BUKHENIK: No. Well, yes, I did. Yes.
MR. JACKSON: Okay. What did you do in that regard? What were the accusations and what did you do to investigate?
MR. BUKHENIK: The information had been learned and it was not factual.
MR. JACKSON: So, okay, you're using the word information. Help me out. Details. What did you learn?
MR. BUKHENIK: There were claims that —
MR. BRENNAN: Objection, your honor.
JUDGE CANNONE: Yes. Come on.
MR. JACKSON: Final question, Sergeant. I think I asked this, but let me make sure I'm clear. Your interview along with Michael Proctor with Chris and Julie Albert was February 10th, 2022, correct?
MR. BUKHENIK: I believe so. I'm not certain on that, but I believe it was.
MR. JACKSON: Okay. Well, let me just clear that up real quick.
MR. BUKHENIK: What?
MR. JACKSON: Would it refresh your recollection to look at your report?
MR. BUKHENIK: Yes, absolutely.
MR. JACKSON: Thank you. Does that refresh your recollection, Sergeant?
MR. BUKHENIK: Yes, sir.
MR. JACKSON: What was the date?
MR. BUKHENIK: February 10th.
MR. JACKSON: Thank you. Okay. I want to move back to Canton PD. Did you at some point recover some videos or a series of electronic data that purported to be videos from Canton PD in furtherance of your investigation?
MR. BUKHENIK: Yes.
MR. JACKSON: And to whom did you deliver these videos, and by whom were they requested?
MR. BUKHENIK: The initial request was by Michael Proctor. I delivered them to him.
MR. JACKSON: Okay. Since that delivery, have you seen these videos?
MR. BUKHENIK: Yes, I have.
MR. JACKSON: Okay. I'm holding a flash drive that I'd like — with the court's permission — to have marked as next in order for introduction, but I'll play the first couple of seconds of it and just establish the foundation first with the court's permission.
JUDGE CANNONE: Have you shown it or discussed this with Mr. Brennan?
MR. JACKSON: I've just discussed it with Mr. Brennan at the break.
JUDGE CANNONE: What's the Commonwealth's position?
MR. BRENNAN: And I have no idea what it is. Sure, we can mark.
JUDGE CANNONE: Yes.
MR. JACKSON: Uh, Mr. Brennan said he'd like to review them before they get entered into evidence.
MR. BRENNAN: We can mark it for ID for purposes of this examination. I don't expect I'll object. I just want to review.
JUDGE CANNONE: Okay. So we'll mark it for identification. Please mark exhibit GG for identification, just to establish the foundation so we know what we're talking about.
MR. JACKSON: Did you see on some of the electronic devices that you picked up in furtherance of this investigation video of somebody outside?
MR. JACKSON: Now, were there the outside cameras or outside camera view at Canton PD at about 1:30 in the morning on January 29th, 2022?
MR. BUKHENIK: The digital video — one of the collection items — it wasn't a device, it was — well, I guess it is a device — but the digital storage that was collected had video from an external view of the PD. I do not remember specifically seeing an individual, but I did review — at least one of the clips being of the parking lot area outside Canton PD. I don't remember seeing anyone at the outside parking lot. I had to have seen it.
MR. JACKSON: I understand. Do you remember another clip being of the outside Sallyport? There's a pedestrian door — not the big roll-out door, but a pedestrian door. Someone going in and out of the pedestrian door.
MR. BUKHENIK: I know the view you're talking about, but specifically what you're saying, I'd have to see the video to tell you if I saw it or not.
MR. JACKSON: And I'm asking a couple of these other questions. I think I may know what the answer is. Do you remember another video being an internal corridor, looking down the hallway and seeing someone walk up or back?
MR. BUKHENIK: Yes.
MR. JACKSON: Remember that one?
MR. BUKHENIK: I do.
MR. JACKSON: Okay. And then one on the outside again, sort of passing from right to left — may not be attendant to a parking lot, but at least an outdoor view of someone moving from frame right to frame left across the camera angle.
MR. BUKHENIK: I don't remember that.
MR. JACKSON: Do you remember — all these videos I've just mentioned, four, we've talked about four. These videos were from January 29th, 2022, around generally 1:30, 1:45, 2 o'clock in the morning.
MR. BUKHENIK: I'm sorry, I don't remember the exact time and date. I just remember seeing the file and reviewing it.
MR. JACKSON: Do you remember Mr. Proctor asking for video attendant to January 29th? At least can we narrow it to that date from Canton PD?
MR. BUKHENIK: Yes. Yes.
MR. JACKSON: Okay. So these are all from January 29th, 2022. You just don't remember the specifics of them. It's been too long since you've seen them.
MR. BUKHENIK: I don't know when each video was collected and then reviewed.
MR. JACKSON: Okay. Exactly. Uh, with the court's permission — well, may I have just a moment to confer with counsel?
JUDGE CANNONE: Okay.
MR. JACKSON: Your honor, with the court's permission, I'd ask that what's been marked as GG — at least the first video — be published for the jurors.
JUDGE CANNONE: All right. So there are four videos on this flash drive.
MR. BRENNAN: One camera.
MR. JACKSON: One video, four different camera angles as it's set from the one.
JUDGE CANNONE: Are you ready to see this now? I thought you wanted to review it.
MR. BRENNAN: I'll agree. And if I have a problem, I'll let it on the record. No problem.
JUDGE CANNONE: All right. So for the first one — the first camera angle, correct?
MR. JACKSON: It's one video, but four different angles.
JUDGE CANNONE: All right. We just have to keep a record. That's — asking all these questions — it's a little complicated. I get it. All right. We can do that.
MR. JACKSON: Thank you. And this is, your honor, just for the record — um, actually, let me do it this way. Sergeant, would you agree that we can call this the rear lot main side at Canton PD, just for identification purposes?
MR. BUKHENIK: Sure, if you'd like. I don't know which side this is, so I can't argue with you about the location. I'll agree that we can call it that.
MR. JACKSON: Great. It looks like a parking lot. There are cars.
MR. BUKHENIK: Yes. Yes, sir.
MR. JACKSON: Okay. Just for purposes of so it doesn't get complicated, we'll call this rear lot main side. That doesn't mean anything unless you adopt it, so just for identification purposes.
JUDGE CANNONE: Thank you.
MR. JACKSON: Um, if we could move to runtime 12632. Okay. Uh, with the court's permission, may I play it at this point?
JUDGE CANNONE: Okay.
MR. JACKSON: Thank you. Stop. Did you see a car pass in front?
MR. BUKHENIK: Yes, sir.
MR. JACKSON: Okay. What kind of car did that look like to you?
MR. BUKHENIK: It looked like a two-door Jeep Wrangler with a plow on it.
MR. JACKSON: Okay. Let's go ahead and play it. Okay. Stop. Sergeant, did you during the course of your investigation learn whether or not anybody associated with your investigation had a two-door Jeep Wrangler with a plow?
MR. BUKHENIK: Yes.
MR. JACKSON: Who is that?
MR. BUKHENIK: Mr. Brian Higgins.
MR. JACKSON: Okay. Thank you. Let's go ahead and play this. Okay, stop. Sir, do you see a person who appears to have alighted from the car?
MR. BUKHENIK: Yes. From the Jeep.
MR. JACKSON: Um, Sergeant, if you could turn your attention to the screen on the right. Does that appear to be the location of the person that you're describing?
MR. BUKHENIK: That's the individual that came out of the vehicle. Yes.
MR. JACKSON: Okay. I know it's super blurry. May not be able to — at this point, do you know who that is?
MR. BUKHENIK: I do not know.
MR. JACKSON: Okay. Let's go ahead and play it. Okay, stop. All right. Did you see the person walk off the screen?
MR. BUKHENIK: Yes.
MR. JACKSON: Did it appear that that person had something in his or her hands?
MR. BUKHENIK: Possibly. Yes.
MR. JACKSON: Okay. May I have a moment?
JUDGE CANNONE: Okay.
MR. JACKSON: Thank you, your honor. If we could play the second clip on this same GG. Before this is played, Sergeant, do you recognize what's depicted in this photograph?
MR. BUKHENIK: I do not know.
MR. JACKSON: Okay, let's go ahead and play this. Stop. What do you see on the video at this point?
MR. BUKHENIK: An individual crossing the frame with a couple of cars parked, one of which has a plow on it.
MR. JACKSON: Does it look like an exterior video?
MR. BUKHENIK: Yes.
MR. JACKSON: Does that appear to be an exterior video — if you don't know exactly where — an exterior video of Canton PD from the facilities?
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. And describe the person that you see in the foreground at the bottom of the screen.
MR. BUKHENIK: Appears to be wearing a black sweatshirt, a hooded sweatshirt.
MR. JACKSON: Larger in stature, smaller in stature — can you tell?
MR. BUKHENIK: I'd be speculating because there's no comparison, but possibly larger. I don't know.
MR. JACKSON: Okay, let's go and play it. And that's it for that. Your honor, if we could play the next video. By the way, can we agree before we move off of this? Just for identification purposes, can we agree to call this rear lot cruiser side as opposed to rear lot main side, just to keep them separate? Same as last time.
MR. BUKHENIK: I'm not familiar with where that camera is. So I cannot argue with you nor adopt. But if for identification purposes only, we can agree on that.
MR. JACKSON: Can you see from where you are — I know the answer to this — can you see from where you are the time stamp on the bottom of this?
MR. BUKHENIK: No.
MR. JACKSON: Your honor, with the court's permission, it's very, very small. Is it possible to ask the witness to step down from the witness stand just to get close enough to see if he can read the —
JUDGE CANNONE: You can't increase the size of it?
MR. JACKSON: Um, maybe we can. I'm not the tech guy. Mr. Woll — magic!
MR. BUKHENIK: Wow. I didn't even know he could do that.
MR. JACKSON: Okay. Can you read that?
MR. BUKHENIK: Yes. It says rear lot cruiser side.
MR. JACKSON: Okay. What about the time?
MR. BUKHENIK: The time stamp reads 1:27:41.
MR. JACKSON: Do you see a date?
MR. BUKHENIK: Yes.
MR. JACKSON: What is that date?
MR. BUKHENIK: 1/29/2022.
MR. JACKSON: Thank you. Um, this was my fault. Your honor, if we could move back to rear lot main side, I'd like to do the same thing. I failed to ask for the time and date on that one. Mr. Woll, if you could please. Is it possible to see from there the time and date?
MR. BUKHENIK: Yes, the time is 1:27:32 a.m. and the date is 1/29/2022.
MR. JACKSON: Thank you. Okay, if we can move to the third clip, if we can start, Mr. Woll, by enhancing with the court's permission the time and date. Let's just start with that. Do you see what the time stamp designates this camera angle to be?
MR. BUKHENIK: It appears to be church side, and I can't read the third word there.
MR. JACKSON: Exterior?
MR. BUKHENIK: Oh yes, exterior. Sallyport.
MR. JACKSON: Okay. And if you could tell the jurors what you see in terms of the time and date.
MR. BUKHENIK: The time is 1:27:43 a.m. and the date is 1/29/2022.
MR. JACKSON: Thank you, Mr. Woll. If you could play that with the court's permission. Okay. Stop. Do you see a person in that video?
MR. BUKHENIK: I do. Although it's somewhat blurry.
MR. JACKSON: Can you describe that individual for us, please?
MR. BUKHENIK: Individual wearing dark clothing possibly. That's the best I could do really.
MR. JACKSON: Okay. Does it appear, given what you've seen in terms of the time of the main side, cruiser side, and now this exterior church side, does that appear to be the same person moving through the outside of Canton PD?
MR. BUKHENIK: It does. Yes.
MR. JACKSON: Okay. And what are we looking at here, by the way? What is this door where he's about to walk into?
MR. BUKHENIK: I would — I'd be guessing. I was never present on that side of the sallyport. I don't know.
MR. JACKSON: Let's go ahead and play this. Okay. And for the final clip, if we could go down to the time stamp and date a little bigger, Mr. Woll, if you could. Can you see what that is designated as, that camera angle?
MR. BUKHENIK: Yes. It says first floor corridor and the time is 1:28:03 a.m. on the 29th of January, 2022.
MR. JACKSON: Okay. Is this the [unintelligible] video that you did have some recollection of?
MR. BUKHENIK: Yes, this is. Yes.
MR. JACKSON: Okay. If we can go ahead and play this. Stop. Do you recognize the person in this video?
MR. BUKHENIK: It appears to be Mr. Brian Higgins.
MR. JACKSON: Okay. And what is he wearing? Describe it for the jurors.
MR. BUKHENIK: Black sweatshirt with some sort of logo on the front. It appears to be blue jeans and shoes with a white trim.
MR. JACKSON: And is the hood up or down on the sweatshirt?
MR. BUKHENIK: It's up.
MR. JACKSON: Okay, let's go ahead and play this. I have just a moment. Could you pause this, Mr. Woll? Can you make note of the time as it's paused right here?
MR. BUKHENIK: Do you want me to say it or write it down?
MR. JACKSON: Yes, sir.
MR. BUKHENIK: The time is 1:28:16 a.m.
MR. JACKSON: Okay. And if we could just continue playing this video.
MR. JACKSON: Stop. Now if you could take a look at the time now. Okay. What's that time?
MR. BUKHENIK: 1:29:42 a.m.
MR. JACKSON: And if we go ahead and go forward — is it still playing, Mr. Woll? If we could take a look at the time one more time. Now it's —
MR. BUKHENIK: You want me to say it?
MR. JACKSON: Yes, sir.
MR. BUKHENIK: 1:34:12 a.m.
MR. JACKSON: And just so the record's clear, in the time between you saying 1:28:16 to 1:34:12, 6 minutes has not gone by. Correct?
MR. BUKHENIK: Just under six, I believe.
MR. JACKSON: Well, six minutes for us in real time.
MR. BUKHENIK: Oh, in real time. Yeah. No. No, it is not.
MR. JACKSON: So it appears that the camera jumped or the time jumped. The time difference from what was displayed is approximately 6 minutes.
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. Which is much — much further — much longer than the time we've actually been looking at the video.
MR. BUKHENIK: Correct. That's correct. Yes.
MR. JACKSON: Okay. So it appears that it may be motion activated and it just jumped.
MR. BUKHENIK: That's a possibility. Yes.
MR. JACKSON: Okay. Let's go ahead and continue playing this. Stop. Do you see someone on the screen now?
MR. BUKHENIK: Yes.
MR. JACKSON: And one more time — I know this is laborious — one more time, if we could clock the time. Can you see that?
MR. BUKHENIK: No, it's really blurry for me. There we go. Yes. Now I can see it — 1:34:15, if I'm not mistaken.
MR. JACKSON: Okay, fair enough. And let's go ahead and play this all the way through. Okay. Who did that appear to be walking away from the camera in this shot?
MR. BUKHENIK: I'm not certain. I would be suspecting or guessing if I gave you an answer, but I'm not certain who that is.
MR. JACKSON: As best you can determine, does he have the same stature — I know you can't see his face — same stature, same clothing, jeans, shoes with white stripe around them, dark hooded sweatshirt. Does that appear to be the same person as Brian Higgins?
MR. BUKHENIK: It does appear that way. Yes.
MR. JACKSON: Okay. Is that it? Okay. There's one more clip that I'd ask you to look at on this same GG device. Okay. What do you see in this video?
MR. BUKHENIK: It appears to be the church-side sallyport and an individual came out of the door.
MR. JACKSON: Okay. And can we highlight the time, please, or increase the size? What time do you see there?
MR. BUKHENIK: 1:34:00 a.m.
MR. JACKSON: Okay, if we go ahead and play this through. Pause. Does it appear from this video that the person has anything in his hand?
MR. BUKHENIK: I'm sorry. Can you play that again? I wasn't looking at the hand, but sure. I really can't tell.
MR. JACKSON: Okay, there should be another video of the rear lot cruiser side. Let's take a look at that. Pause. What do you see in that video?
MR. BUKHENIK: It appears to be an individual wearing a black beanie hat, black dark-colored sweatshirt with some design on it and something illuminating by his face.
MR. JACKSON: Can we enhance the time, please? What time is that?
MR. BUKHENIK: It says 1:34:53 in the morning.
MR. JACKSON: AM. And if you could move the screen over to the individual — does that appear to be the same person?
MR. BUKHENIK: It could possibly be. Yeah.
MR. JACKSON: And does it appear that something is in his hands, up to his face, the right side of his face or ear?
MR. BUKHENIK: Yes.
MR. JACKSON: What do you think that is?
MR. BUKHENIK: It's consistent with a cellular device, possibly a phone or a tablet.
MR. JACKSON: Okay, if we can move on, please play that through. And I believe there's one more video. And your honor, this one is a little longer — this is about 10 minutes. With the court's permission, I'd like to play this through. Please stop. Do you see a person in the video walking from screen right to screen left?
MR. BUKHENIK: Yes.
MR. JACKSON: Did that person appear to have something in his right hand?
MR. BUKHENIK: I can't tell. I can't see his right hand.
MR. JACKSON: Okay. When he first walked into the screen, could you tell?
MR. BUKHENIK: I couldn't. I'm sorry.
MR. JACKSON: Mr. Woll, could we back that up with the court's permission — about two seconds? Stop. Did it appear he had something in his hand?
MR. BUKHENIK: It's a possibility. Yes.
MR. JACKSON: Okay. And just for — I'm going to ask you for two times: when we start and where we stop. What's the time on this video at this point when he walks into frame?
MR. BUKHENIK: 1:35:08 a.m.
MR. JACKSON: Okay. And let's go ahead and play this through. [unintelligible]: Got him. Pause it, please. Sergeant, at this point, do you see a person walking into the frame from frame left to frame right?
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. Go ahead. Can you pause it? Did you see something happen with the vehicle next to the Jeep in the last few seconds?
MR. BUKHENIK: Yes.
MR. JACKSON: What was that?
MR. BUKHENIK: It appears as though the headlights are activated.
MR. JACKSON: Okay, let's go and play it. Okay, pause it. You see a person that walked — is walking from screen right to screen left in the middle of the screen?
MR. BUKHENIK: Yes.
MR. JACKSON: He — or she — just appears to have closed the door on that vehicle next to the plow. Okay. And walking toward which vehicle?
MR. BUKHENIK: Uh, the one on the furthest on the left.
MR. JACKSON: Okay. From what you've seen, Sergeant — that you said "he or she" — does that person appear to be consistent with the video that we've seen of in other particulars of Brian Higgins?
MR. BUKHENIK: As far as I could tell from here, the individual accessed Brian Higgins's vehicle. So I'd be speculating. With the white-out conditions or near white-out conditions, it's tough to tell. But no reason to believe it's anybody other than Brian Higgins walking — accessing Brian Higgins's vehicle.
MR. JACKSON: No. Okay. Let's go ahead and play it. And what do you see Brian Higgins — or that person — doing now?
MR. BUKHENIK: They access the vehicle on the far left.
MR. JACKSON: Okay. And where is that person going now?
MR. BUKHENIK: They're accessing the Jeep Wrangler.
MR. JACKSON: Can you pause it? Where does that individual appear to be now in the video?
MR. BUKHENIK: Uh, last I could tell, they might be by the Jeep Wrangler.
MR. JACKSON: Before that person got to the Jeep Wrangler — was he standing by the vehicle on the far left? SUV or truck?
MR. BUKHENIK: It appeared that way, but with the heavy white-out snow that night, I can't tell exactly what they were doing.
MR. JACKSON: Did you see anything in his hand, like a bag or a satchel or duffel bag or something, when that person walked from this vehicle over to the Jeep?
MR. BUKHENIK: I did not notice. No.
MR. JACKSON: Go ahead. Now, has that person walked off screen to the left?
MR. BUKHENIK: Yes, sir.
MR. JACKSON: Okay. Do you see that person entering screen from screen left?
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. What did you just see the person do?
MR. BUKHENIK: They were carrying possibly like a snow broom, walking from left to right.
MR. JACKSON: And what do you see happening now?
MR. BUKHENIK: The Jeep Wrangler is leaving the spot it was parked in.
MR. JACKSON: Okay. We can take that down. Oh, I'm sorry — I failed to ask you the time. I promised I would do it and I forgot again. Can we look at the time real quick?
MR. BUKHENIK: Yes. The time for the rear lot main side is 1:45:2.
MR. JACKSON: And it appears that's the approximate time that the Jeep Wrangler drove off, approximately?
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. Thank you. in 20. Well, are you friends with Brian Higgins?
MR. BUKHENIK: I am not.
MR. JACKSON: Do you know Brian Higgins?
MR. BUKHENIK: I know who he is. Yes.
MR. JACKSON: Have you ever socialized with Brian Higgins? Like out on private time? Go out, have a beer? See him at a bar — "Hey, Brian, let's grab a beer." Nothing like that?
MR. BUKHENIK: No.
MR. JACKSON: How long have you known Mr. Higgins?
MR. BUKHENIK: I'd be speculating. It's before this case. He was a law enforcement individual that worked in the area. So I've had cases where he assisted on and that I've assisted on.
MR. JACKSON: Would you consider yourself to have a professional relationship with him?
MR. BUKHENIK: I knew who he was. So yes, I would consider a professional relationship.
MR. JACKSON: But you would not consider your relationship to have gone over to a personal relationship? You don't do any private get-togethers?
MR. BUKHENIK: No.
MR. JACKSON: Okay. You would agree that this video pretty clearly shows, at least at one point around 1:34 a.m., Brian Higgins was on his phone?
MR. BUKHENIK: Is that the one that he has the device by his face?
MR. JACKSON: Correct.
MR. BUKHENIK: It appears that way. Yes.
MR. JACKSON: And just to be clear, when you interviewed Mr. Higgins, he did not volunteer to give you his phone.
MR. BUKHENIK: Correct. He did not volunteer. No.
MR. JACKSON: And you didn't seek his phone through a warrant or any other mechanism?
MR. BUKHENIK: I did not. No.
MR. JACKSON: Do you have any personal knowledge as to the status of that phone as we sit here today? The one that he got the extractions from?
MR. BUKHENIK: Correct. No idea. No.
MR. JACKSON: I want to shift gears to another series of videos. Last year at another proceeding, you were asked about a couple of videos from the interior Sallyport garage at Canton PD. So now we're going to move to the interior. You remember that series of questions and answers that you gave, generally?
MR. BUKHENIK: Okay.
MR. JACKSON: You were asked at another proceeding to describe when the SUV — Miss Read's SUV — first arrived at the Sallyport garage, around 5:30 or so?
MR. BUKHENIK: Correct. Based on my recollection of it first arriving, or what we were viewing?
MR. JACKSON: What you were viewing.
MR. LALLY: I'm objecting to this.
JUDGE CANNONE: Ask it differently. Mr. Jackson, do you remember being asked a series of questions concerning the arrival of the SUV just in general?
MR. BUKHENIK: I remember that it happened. I don't remember the exact questions or what my answers were.
MR. JACKSON: And you remember seeing a video about which you were asked questions concerning the arrival of that SUV pulling into the Sallyport — who was who, what the time frame was, generally. Do you remember that colloquy, that discussion?
MR. BUKHENIK: I remember it taking place. Yes.
MR. JACKSON: That was Mr. Lally asking you questions, correct?
MR. BUKHENIK: I believe so.
MR. JACKSON: Under questioning by the Commonwealth, you were asked whether the video that you were looking at fairly and accurately represented the SUV arriving at the Sallyport garage. Correct?
MR. BUKHENIK: Yes.
MR. JACKSON: And you indicated in fact it did fairly and accurately depict the arrival of the SUV at the Sallyport garage. Is that right?
MR. BUKHENIK: That's correct.
MR. JACKSON: I'd like to ask you a question about that particular video. Your Honor, I'm holding a flash drive. May I approach?
JUDGE CANNONE: Yes. They have a moment to consult with counsel. Okay. Paul, the lunch is here. Jurors, you know what? Let's take the lunch break. Thank you. What I'd like to do is have the voir dire right now to see what Sergeant Bukhenik knew regarding that line of testimony you wanted to get into. So let's do that now and then you can all work out the video issues.
MR. JACKSON: Ah, yes. Okay. May I inquire briefly?
JUDGE CANNONE: Yes. Thank you.
MR. JACKSON: Sergeant, we were talking before the jury left. We were talking a little bit about the conversation that you had with Michael Proctor, either during or just before or just after that first interview with Chris and Julie Albert. What I'd like to ask you is, what information did you have and what did you ultimately learn about their relationship? You said there were some accusations and we never really got to the heart of it. What did you know and what did you do to investigate? What did you learn?
MR. BUKHENIK: What I — and he said yes. And me being a complete outsider and his supervisor, and realizing if there was any impropriety that I would step in and recognize it, report it, and act on that, the interview was conducted without issue and we moved on. As a matter of fact, one of the things in Trooper Proctor's report — it said following it, the report started with "following formal introductions."
MR. JACKSON: Did that suggest to you that Trooper Proctor had no knowledge of who Chris or Julie Albert were from a personal standpoint?
MR. BUKHENIK: Not at all. I — if I believe — maybe I wrote the report, or was it him?
MR. JACKSON: I think it is you. I think it is. Yeah.
MR. BUKHENIK: So I may — Yes.
MR. JACKSON: Just so you have that. Thank you.
MR. BUKHENIK: Yeah, since I authored the report, I wrote "following formal introductions" since I've never met them before.
MR. JACKSON: Okay. So that was more attended to you than to Michael Proctor.
MR. BUKHENIK: Correct.
MR. JACKSON: Okay. But the report does say we introduced ourselves — "following formal introductions."
MR. BUKHENIK: I had formal introductions to them. I've never met them before in my life.
MR. JACKSON: You said that subsequently you learned — your word — "accusations" that had been made concerning a possible relationship between Michael Proctor and the Alberts. What was that information that you learned? When was it? When did you learn it? I thought you said 2023, but I could be wrong. When did you learn that?
MR. BUKHENIK: It was during — I believe during the July motion proceedings, when you guys had pictures up of children.
MR. JACKSON: July of what year?
MR. BUKHENIK: I believe 2023.
MR. JACKSON: Okay. And what was it that you learned in July of 2023 about the accusations?
MR. BUKHENIK: That those were Alberts' or McCabe's kids in the photograph with Michael Proctor.
MR. JACKSON: Okay. Did you ever learn about personal communications that Michael Proctor or his wife may have had with any of the Albert family, including Julie Albert? Ever?
MR. BUKHENIK: Yes.
MR. JACKSON: Okay. Tell me when you learned that and what you learned, in that order.
MR. BUKHENIK: Well, Michael Proctor had communicated with those individuals. Oh, excuse me — Elizabeth Proctor had communicated with those individuals due to the harassment that they've sustained. So, with the crazy behavior that's been imposed on them, and the torturous harassment they've endured, the traumatic experiences they had to live through, they've communicated. So I've learned about that. Yes, I was taking in all of that — evidence, hundreds of pieces of evidence that I've archived in order to —
MR. JACKSON: Go ahead.
MR. BUKHENIK: — in order to investigate it.
MR. JACKSON: Okay. You're talking about Elizabeth Proctor, well after the fact of the interview and the incident in 2022. That's what you were just describing.
MR. BUKHENIK: It was after the harassment —
MR. JACKSON: Okay.
MR. BUKHENIK: — started. Yes.
MR. JACKSON: Which is well after January 29th, 2022.
MR. BUKHENIK: Correct.
MR. JACKSON: January 29.
MR. BUKHENIK: Yes, it is.
MR. JACKSON: Okay. I'm asking about information related to a relationship prior to January 29th, 2022. Did you ever learn about a pre-existing relationship that may have existed between the Proctor family and the Albert family before January 29th, 2022 and maybe a couple of days after?
MR. BUKHENIK: All I know is that there was a relationship explanation provided by Mr. [unintelligible] during one of the motions, and it was like six degrees separated by individuals residing in the community or living in the community, raising their kids in the community, working in the community — so making them community members and having a relationship within that. I don't know the extent of those relationships.
MR. JACKSON: Okay. Did you, during that hearing where you said there were pictures of the kids and etc. — that July 2023 hearing — did you see a post, a Facebook post during the course of that hearing wherein the Albert family called the Proctor family their second family, or vice versa, where the Proctor family, Michael Proctor's mother, they've called the Alberts their second family. You remember that Facebook post?
MR. BUKHENIK: I don't remember seeing that post. I just remember there were like a picture of kids that weren't Michael Proctor's kids.
MR. JACKSON: Okay. But you were in court that day?
MR. BUKHENIK: I was in court in July. I believe it's the 23rd of July for the motion.
MR. JACKSON: Yeah. Leaving aside the photographs that you've talked about, did you see the post, the Facebook post about those two families, specifically Michael Proctor's mom, saying that the Alberts were their quote second family?
MR. BUKHENIK: I don't remember seeing that post.
MR. JACKSON: That didn't strike you? That wasn't in your brain, in your head?
MR. BUKHENIK: I don't think I've ever seen a post like that. So I just remember seeing the post of the kids.
MR. JACKSON: What about — it was Miss Little that was holding up the poster. What about the text messages — or what about any text messages between Michael Proctor and his sister concerning Julie Albert? Very specifically concerning Julie Albert. Are you aware of those?
MR. BUKHENIK: No.
MR. JACKSON: Have you ever seen a text message — between Julie Albert — I'm sorry, between Courtney Proctor and — sorry, it's Courtney — Courtney Proctor and Michael Proctor — where the sister says Julie wants to give you a gift because you're doing such a great job leading this — meaning this investigation. Heard of that?
MR. BUKHENIK: No.
MR. JACKSON: Are you aware of a text message in which Michael Proctor responds, "Get it for my wife." Meaning, "If you're going to give us a gift, get the gift for my wife."
MR. BUKHENIK: No idea.
MR. JACKSON: Okay. Are you aware of a series of text messages between and among Michael Proctor and Elizabeth Proctor — I'm sorry, between Michael Proctor and Courtney Proctor — in which they talk about Julie Albert? This is 10 days before the incident, 10 days before January 29th, so mid-January, where they talk about the possibility of Julie Albert babysitting for Michael Proctor and Elizabeth Proctor's kids.
MR. BUKHENIK: I am not aware of those text messages.
MR. JACKSON: When the first you heard of any of these text messages, the text messages that I'm describing — have you ever heard of any of those?
MR. BUKHENIK: No.
MR. JACKSON: Okay. Did you ever talk to or investigate the circumstance of the possibility — even the remote possibility — that Michael Proctor may have had a relationship with the Alberts that you were unaware of?
MR. BUKHENIK: No, I never investigated anything like that.
MR. JACKSON: So after your initial conversation with Mr. Proctor where he said I know of these people, and you said is there any issue with you going forward, and he said no, there's no issue — you took no further steps after that to investigate that relationship, and I'm talking about the relationship that existed on or around January 29th, 2022, not in 2023, not in 2024.
MR. BUKHENIK: Once Michael Proctor stated that he was comfortable conducting the interview, and I asked him if he was sure and he said yes, we moved on.
JUDGE CANNONE: You have just a moment.
MR. JACKSON: Yes. Last couple questions. Were you in court — I know you're indicating that you've never heard about these text messages. Were you in court in February of 2024 following the federal investigation revelation? The documents that we got — that both sides got — from the federal investigation, which revealed and was revealed in open court the text messages about gift giving between Courtney Proctor and Michael Proctor — "hey Julie wants to get you a gift" — and Michael Proctor's response was "get it for Elizabeth, get it for my wife" — were you in court for those?
MR. BUKHENIK: I was here — following the harassment and intimidation that I experienced on the 23rd, being followed to the bathroom, then being followed outside — I stopped coming to court proceedings due to that. So I was not in court in February of 2024. And describing the information that you're revealing, I was not aware of that.
MR. JACKSON: Did you know that all of these proceedings are televised? Sorry — you know that, right?
MR. BUKHENIK: I'm not aware that it's televised. I know it's streamed, but I'm not aware that it's televised.
MR. JACKSON: Okay. Streamed — however you want to call it — streamed on the internet. You can find it.
MR. BUKHENIK: You can.
MR. JACKSON: Yes, they're recorded, right? Did you ever review the hearing in February 2024 talking about what's been referred to as the Fed dump and the revelations that were made pursuant to that federal investigation and the text messages attendant thereto?
MR. BUKHENIK: I am aware of a Fed dump. I'm aware that it exists. I was not privy to any information outside of the information that was revealed to me during the internal affairs investigation. That was the first time I saw documents from that federal investigation.
MR. JACKSON: By the way, were you privy — there were three individuals involved in the investigation: yourself, Lieutenant Tully, and Michael Proctor. Is that right?
MR. BUKHENIK: What investigation?
MR. JACKSON: The internal affairs investigation.
MR. BUKHENIK: I'm aware that I was. I know they were as well. I don't know who else might have been involved.
MR. JACKSON: When in terms of your awareness of Michael Proctor's investigation — you're aware, obviously, that he was terminated. Correct.
MR. BUKHENIK: I am aware that he's terminated. Yes.
MR. JACKSON: Did you ever see or were you privy to any of the documents or investigative materials associated with his termination as his supervisor?
MR. BUKHENIK: No, no. Nothing was ever shared with me — the final decision — other than the documents that were attached in the text message that I was shown from that investigation. Nobody showed me anything of his investigation.
MR. JACKSON: Okay. So, let's wrap this up.
MR. BUKHENIK: Okay. That was basically — okay.
JUDGE CANNONE: All right. Do you want to be heard, Mr. Jackson?
MR. JACKSON: No.
JUDGE CANNONE: Okay. Yeah. I'm not letting any of this in. I think it's all irrelevant.
MR. JACKSON: I understand. The court's ruling was if he doesn't have personal knowledge of it, didn't have it, then you're not going to let it in. It's over our objection, but that's been noted.
JUDGE CANNONE: Okay. So you got your voir dire, and I'm glad we fleshed it all out. So you have to be back here in 35 minutes. All right. When's the jury coming back, Paul?
COURT OFFICER: 20.
JUDGE CANNONE: All right. Be back here at 1:25.
COURT OFFICER: Ready to go to the court. You are unmuted.
JUDGE CANNONE: Please be seated. Court is in session. All right, Mr. Jackson.
MR. JACKSON: Thank you, your honor. As a matter of housekeeping, I'd ask that [unintelligible] for identification.
JUDGE CANNONE: Yes. May I inquire?
MR. JACKSON: I'm so sorry. I did it again. Thank you.
JUDGE CANNONE: Thank you. Yes. Go right ahead, Mr. Jackson.
MR. JACKSON: Thank you. Just before the lunch break, Sergeant, I asked whether you had engaged in a discussion with the Commonwealth at a prior proceeding in which you were shown a video and you talked about the fairness and accuracy of that particular video in the Sallyport when the SUV was first pulled in, and you indicated that you did indicate that it was fair and accurate. Correct.
MR. BUKHENIK: Yes. Back then, yes.
MR. JACKSON: I want to play a copy — a bit of that video if I could please, with the court's permission.
JUDGE CANNONE: Okay. Is it in evidence?
MR. JACKSON: It is not. I would ask that we mark as next in order thumb drive.
JUDGE CANNONE: Were we marking this for identification or is there an agreement it's going into evidence?
MR. JACKSON: I'd like it into evidence.
MR. BRENNAN: We agree with the stipulation that it's authentic. I'm not going to argue metadata issues or authenticity issues.
JUDGE CANNONE: So, all right. Is there a stipulation that this is authentic? Okay. So, folks, again, a stipulation means the parties agree, and with that I will allow this into evidence as the next exhibit. Madam COURT REPORTER: notes exhibit Jackson, is that it? Okay. Now you may display it.
MR. JACKSON: Thank you. Okay. Could we play from the beginning? What's the run time, Mr. Woll?
MR. JACKSON: This is at 5:37:03. If we could just play this forward for a couple of seconds — a little bit further. Pause. Do you see what's depicted in this video?
MR. BUKHENIK: Yes, I do.
MR. JACKSON: This is the video that you were shown at a prior proceeding, correct?
MR. BUKHENIK: Yes, it is.
MR. JACKSON: Does this appear to be the interior of the Sallyport at Canton PD?
MR. BUKHENIK: Yes, it is.
MR. JACKSON: And this is what you were questioned about regarding the SUV being pulled into the Sallyport. Correct.
MR. BUKHENIK: Yes. From a time frame standpoint —
MR. JACKSON: From a time frame standpoint, just the time frame, this is right after the SUV has been driven in from the flatbed after having been seized in Dighton. Correct.
MR. BUKHENIK: Yes, it was driven off of the flatbed after transportation from Dighton to Canton and driven into the Sallyport.
MR. JACKSON: All right. You previously have identified individuals in this video in this still shot. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: And what you previously said — and we'll get to subsequent testimony in a second — you previously indicated that the person to the right was you, person to the left, Michael Proctor. Correct.
MR. BUKHENIK: Yes. Previously I identified that as being Michael Proctor. I was mistaken. That is not me on the right. That would be the tow truck driver.
MR. JACKSON: Correct. That is in fact Michael Proctor, however, in the two-tone jacket. Correct?
MR. BUKHENIK: I believe so.
MR. JACKSON: Okay. And as the video is portrayed, at least as we're looking at it — and I'll get to the next question. As we're looking at it, it appears that we're looking at the right passenger side of the vehicle as it appears in this video. Correct.
MR. BUKHENIK: That's correct.
MR. JACKSON: And you see a time stamp and a date stamp on the bottom. Correct.
MR. BUKHENIK: It is present. I don't know what it says.
MR. JACKSON: Okay. Can we highlight that just a little bit? Can you see what that —
MR. BUKHENIK: I believe it says "interior sallyport back wall." 5:37, maybe.
MR. JACKSON: Okay. When you indicated that this was a fair and accurate depiction of the interior Sallyport when the SUV was brought in, you were specifically asked whether or not you or Michael Proctor approached or manipulated or touched the right rear tail light area of the vehicle. Correct.
MR. BUKHENIK: I don't remember the exact verbiage used, but something along those lines — that's what was asked.
MR. JACKSON: And you indicated that neither of you did. Correct?
MR. BUKHENIK: That's correct.
MR. JACKSON: Okay. But in point of fact, this video is backward. Correct.
MR. BUKHENIK: Yes. It is a mirror image of what is — — actually taking place as recorded by the camera.
MR. JACKSON: Can we play this forward? Do you see where Mr. Proctor — let's go ahead and pause it. Do you see where Mr. Proctor went?
MR. BUKHENIK: Yes. The video depicts him going to that portion of the vehicle, but we can't tell how close he is.
MR. JACKSON: Okay. And from all appearances, importantly, it appears to be the back driver's side, back left of the vehicle. Correct.
MR. BUKHENIK: That's the way it appears. Yes.
MR. JACKSON: Let's play this forward for a second. Pause. Can I ask you to pay special note to the far rear side of the vehicle? Do you see what appears to be Mr. Proctor's head?
MR. BUKHENIK: Yes.
MR. JACKSON: As the tow truck driver walks past — — the rear of the vehicle, can you watch and tell me if you see Mr. Proctor do anything or move in any way? Let's go ahead and play it forward. Pause. Did you see any volitional movement by Mr. Proctor as the tow truck driver moved past him?
MR. BUKHENIK: Yes, it appears — if that is his head — it shifted weight.
MR. JACKSON: Okay. Let's go ahead and play it forward. Stop. Did you see a person that appeared to move toward the back of the vehicle? Right there. There is some anomaly there with the footage. So it could possibly be used to describe that. Can you recognize that person?
MR. BUKHENIK: I cannot tell.
MR. JACKSON: Does that person — — look large or small in stature?
MR. BUKHENIK: I can't tell.
MR. JACKSON: As compared to, for instance, Michael Proctor, whose head you can see above the car — what about this person? Taller or shorter than Michael Proctor?
MR. BUKHENIK: I can't tell from here. I can't.
MR. JACKSON: You indicated that Chief Berkowitz was a smaller statured person. Correct.
MR. BUKHENIK: I never said that. I'm sorry. I didn't know his height.
MR. JACKSON: Larger or smaller? Generally. How about this — larger or smaller than you?
MR. BUKHENIK: He's shorter than me.
MR. JACKSON: Okay. Can you tell whether or not that is Chief Berkowitz?
MR. BUKHENIK: I cannot tell.
MR. JACKSON: Okay, let's go ahead and play it forward a little bit further. Pause. What does it appear that Mr. — — Proctor does at this point in the video?
MR. BUKHENIK: He's walking.
MR. JACKSON: Okay. Do you see anything in his hand?
MR. BUKHENIK: I cannot tell from the video. He might be carrying something.
MR. JACKSON: Remember we looked previously at a portfolio — a black portfolio. Does it appear that he may have a black portfolio in his hand?
MR. BUKHENIK: That is very likely, but I don't know exactly what he's carrying.
MR. JACKSON: Okay, let's go ahead and play this forward. Okay. And did it appear that somebody just appeared at the right-hand side of the screen toward the front of the SUV as well?
MR. BUKHENIK: Yes, it appears that way. Yes.
MR. JACKSON: Okay. Let's take this — — down. I'd like to mark — I have another electronic device, a thumb drive, that has another video on it, your honor. I'd like to have that marked as next in order. court clerk: notes exhibit
JUDGE CANNONE: All right. So, there's no objection, Mr. B?
MR. LALLY: No objection.
MR. JACKSON: Thank you.
JUDGE CANNONE: Okay. Is it 119?
MR. JACKSON: With the court's permission.
JUDGE CANNONE: Yes.
MR. JACKSON: Now, Sergeant, what is this still?
MR. BUKHENIK: It appears to be the mirror image of the previous footage.
MR. JACKSON: I don't know the exact timestamp there, but can we increase the date and time? Do you see? Can you read the date and time stamp on this?
MR. BUKHENIK: [unintelligible], I cannot now. It's because it's backward.
MR. JACKSON: Correct. I can't make it out —
MR. BUKHENIK: — sir.
MR. JACKSON: Can you make it any bigger, Mr. Woll? Does that appear to be backward?
MR. BUKHENIK: Based on me recognizing some of the digits, it does appear to be backwards.
MR. JACKSON: Okay, let's look at the whole screen again. Sergeant, let's play this forward for just a quick second. Pause. Do you see Michael Proctor in this video?
MR. BUKHENIK: I believe that's him. Yes.
MR. JACKSON: And which side? And let's start with this. Do you agree that this is the correct version of the camera angle and the SUV as it pulled into the Sallyport?
MR. BUKHENIK: This footage, the way it is depicted right now, very accurately represents what I remember — — from being there.
MR. JACKSON: In fact, this side of the vehicle that we're looking at — that's closest to us, that I'm highlighting on the screen to your right — that is in fact the driver's side of the vehicle, not the passenger side of the vehicle. Is that correct?
MR. BUKHENIK: That is correct.
MR. JACKSON: The far side over here would be the right rear of the vehicle. Correct.
MR. BUKHENIK: Yes, sir.
MR. JACKSON: Which area is Michael Proctor walking to — the left rear or the right rear in this footage?
MR. BUKHENIK: It appears — if that's him — he's walking to the right rear of the vehicle.
MR. JACKSON: Can we play this forward? And do you see Mr. Proctor's head above the SUV?
MR. BUKHENIK: Yes.
MR. JACKSON: And watch him as the tow truck driver — — walks by. Did he appear to move?
MR. BUKHENIK: He shifted weight. Yes.
MR. JACKSON: And it appears that there's another person that showed up in the footage, an anomaly of some sort, walking offscreen left to right. Is that right?
MR. BUKHENIK: That's what it appears. Yes.
MR. JACKSON: Is Mr. Proctor still at the right rear tail light area?
MR. BUKHENIK: He's in that general vicinity. Yes.
MR. JACKSON: Let's go ahead and play it forward. A little bit further. Pause. Can you see anything in his hand? Let me just ask — is it closed in. Do you see the portfolio in his hand?
MR. BUKHENIK: It would not be unlikely that it's there, but I can't tell exactly what it is in his hand.
MR. JACKSON: Let's play it forward. Do you see anything in his hand now as his arm —?
MR. BUKHENIK: Yes.
MR. JACKSON: Does it appear to be consistent with the black portfolio that we saw earlier?
MR. BUKHENIK: Yes, it is. Yes.
MR. JACKSON: Let's move forward. And he is now offscreen. Correct.
MR. BUKHENIK: Yes.
MR. JACKSON: So, in point of fact, Sergeant, when you were asked previously whether the prior video fairly and accurately depicted what you recall as it pertains to the SUV and the Sallyport, that was not quite true. Correct.
MR. BRENNAN: Objection.
JUDGE CANNONE: I'll allow it.
MR. BUKHENIK: The way I understood the question is, what I'm watching accurately depicts what's taking place. Just because it's a mirror image doesn't mean it's not recording the actions and — — what is transpiring.
MR. JACKSON: But you would agree, at least, that the previous video showed exactly the opposite of what was true and correct — not just a mirror image. What was left is right and what is right is left. Correct.
MR. BUKHENIK: [unintelligible]
MR. JACKSON: Would you agree that in point of fact a mirror image video is not a true and accurate depiction of what's depicted in a scene?
MR. BUKHENIK: I think it just is a mirror image of what's taking place. If you see someone walking in or driving a vehicle, and it's depicting the action of the vehicle being pulled in — and if it's mirrored, it's pulling in from left to right or right to left — it's still — — documenting the activity that's taking place.
MR. JACKSON: Or if someone walks to the left rear of the vehicle versus the right rear of the vehicle, those two things will be switched. Correct.
MR. BUKHENIK: That is correct. Yes.
MR. JACKSON: And you'll agree that the prior video that we showed — that you and I just talked about, the inverted video — appeared for all intents and purposes to show Michael Proctor stay away from the right rear tail light, walk all the way around, and position himself to the left rear tail light. You would agree with that, correct?
MR. BRENNAN: Objection.
JUDGE CANNONE: I'll allow it.
MR. BUKHENIK: It appeared that that is what was — happening. But he was standing next to the tail light that was already damaged.
MR. JACKSON: But in the corrected video, which is this one, it actually shows unequivocally that Michael Proctor walked directly to the right rear tail light portion of this SUV. Correct.
MR. BUKHENIK: I'm sorry. Can you repeat that?
MR. JACKSON: Sure. In the corrected video, this video here, this unequivocally shows that Michael Proctor walked toward the right rear area of that SUV where the right tail light is. Correct?
MR. BUKHENIK: Yes.
MR. JACKSON: And you'll also agree that this video was taken before any tail light material was ever found at 34 Fairview. Correct. Can you zoom in on the time?
MR. BUKHENIK: Not on this one. This is backwards. I know that the SUV pulled into the garage, the Sallyport, at 5:35, and we were still on scene at 5:51, almost 5:52. So yes, if that time stamp is before 5:51, before we left Canton PD, then yes, tail light pieces had already been found.
MR. JACKSON: So 5:35, 5:37 is before the first tail light pieces were found. Correct.
MR. BUKHENIK: I'd have to see a time stamp of when they were exactly found, but — if that — a different way.
MR. JACKSON: 5:37? 5:35. Yes. Just a moment, your honor.
JUDGE CANNONE: Yes.
MR. JACKSON: Sergeant, Canton PD is about a mile and a half from 34 Fairview. Is that right?
MR. BUKHENIK: Approximately. I don't know the exact distance. I never measured it, but I would not be shocked if you were accurate in that. Maybe a three or four minute drive depending on the traffic conditions and the weather conditions. That could be a possibility depending on the speed you travel.
MR. JACKSON: I'm sorry, your honor. I have a photograph that I'd like to have marked with the court's permission, if I may approach.
COURT CLERK: Marked for identification. Marked for identification for the time being.
JUDGE CANNONE: Okay. Yes. Let's mark it first, please.
COURT CLERK: H.
MR. JACKSON: Thank you. Can we take a look? Thank you. Let me ask you a couple of other questions. We just looked at the videos of the interior of the Sallyport. Hearkening back to what we just looked at — the corrected video. There would also be a camera on the other side of that Sallyport garage pointing down toward the right rear tail light area of the SUV. Correct.
MR. BUKHENIK: Yes. There's a camera situated on the opposite side. We'd be looking at that camera. Correct.
MR. JACKSON: Yes. Okay. Take a look at that photograph. I know the quality of it, but can you tell if that appears to be a still image from that camera?
MR. BUKHENIK: Yes, it appears to be a still image from that video camera.
MR. JACKSON: I'd ask that this be moved to evidence, your honor.
JUDGE CANNONE: Is there an objection?
MR. BRENNAN: No objection.
JUDGE CANNONE: Thank you. Thank you.
MR. JACKSON: If we could display this for the jurors, your honor.
JUDGE CANNONE: Just the photograph. Okay.
MR. JACKSON: Do you see what's depicted? I know the photograph that you're holding is very poor quality. This is — it's a little easier with this lighting. Do you recognize what's depicted in this photograph?
MR. BUKHENIK: I'm sorry. Your laser was bouncing up from the ceiling.
MR. JACKSON: I apologize. Trying to make it easier for you.
MR. BUKHENIK: Yeah, this photograph here — that appears to be the seized SUV belonging to the defendant, with it being situated inside the Sallyport.
MR. JACKSON: And what is that vehicle there?
MR. BUKHENIK: It's an antique police cruiser.
MR. JACKSON: And who is this person?
MR. BUKHENIK: I do not know who that is.
MR. JACKSON: Does it look like Michael Proctor?
MR. BUKHENIK: I don't know. I'd have to get a zoom in. I don't know.
MR. JACKSON: Does he have glasses on?
MR. BUKHENIK: I don't know.
MR. JACKSON: Could be Chief Berkowitz.
MR. BUKHENIK: It could be Chief Berkowitz. I don't know.
MR. JACKSON: Can you tell me the date and time stamp at the bottom?
MR. BUKHENIK: I cannot. I think I might be able to make it out in the actual photograph you printed out. Could I take a look at that?
MR. JACKSON: Sure.
MR. BUKHENIK: Need the light.
JUDGE CANNONE: Yes, please.
MR. JACKSON: Your honor.
JUDGE CANNONE: Yes, please.
MR. BUKHENIK: It appears the time is 11:08 and 59 seconds in the morning of possibly January 30th of 2022.
MR. JACKSON: Okay, let's go ahead and pull this back out full frame. Thank you. I wanted to ask you, do you have a point of reference? Does that appear to be the interior camera facing the other direction, where the SUV was depicted in the Sallyport earlier?
MR. BUKHENIK: It's the opposite of what we had viewed earlier, diagonally across, I believe.
MR. JACKSON: So, this would be the right rear of the vehicle. Correct.
MR. BUKHENIK: That is correct.
MR. JACKSON: Now, I'd like to ask you to take a look at a video. Now that we have that point of reference, I can have that marked as next in order. Your honor, as next in order.
JUDGE CANNONE: So there's no objection, Mr. B?
MR. BRENNAN: I have no objection to that being entered. No.
JUDGE CANNONE: Okay. 121.
MR. JACKSON: Your honor, with the court's permission, could we present this?
JUDGE CANNONE: Go ahead and play it.
MR. JACKSON: Pause. Can you make out, now that that's paused, what's depicted toward the top of the screen?
MR. BUKHENIK: Yes, it appears to be a distorted image of that antique police cruiser.
MR. JACKSON: Okay. And does the area next to the police cruiser appear to be empty?
MR. BUKHENIK: I'm sorry. Yes, it does. Actually, yes, it does look that way. Yes.
MR. JACKSON: Okay. So, there's nothing next to the police cruiser at least at this point. Correct.
MR. BUKHENIK: That's what it appears to be.
MR. JACKSON: Can we take a look at the time stamp on this frame? I'd ask you to let the jurors know if you can see what the actual run time is on this.
MR. BUKHENIK: I can see the time stamp. I don't know the run time, what it's going to be. It's 5:07:10 or :12, something like that. That's the time stamp.
MR. JACKSON: Okay. Yes. P.M. Now, if we could just play this forward. Go back to full screen. Pause. Now, how many seconds would you estimate just went by in real time?
MR. BUKHENIK: Approximately 5 seconds.
MR. JACKSON: Okay. Do you see something in the video now?
MR. BUKHENIK: Yes.
MR. JACKSON: What is that?
MR. BUKHENIK: It appears to be the seized Lexus SUV.
MR. JACKSON: And now let's look at the time stamp. What time is that?
MR. BUKHENIK: 5:50:47 p.m.
MR. JACKSON: So in about — according to your testimony — in about 5 seconds the time jumped from before the SUV was in the Sallyport to about 5:50 p.m. after the SUV had already arrived and is now situated in the Sallyport. Correct.
MR. BUKHENIK: Yes, that is correct.
MR. JACKSON: The time frame that we just saw earlier — of about 5:35, 5:36 or so — with the tow truck driver and Michael Proctor in the video, that is not in this video. It's not captured in this video, was it?
MR. BUKHENIK: It did not present itself. No.
MR. JACKSON: That's all I have.
JUDGE CANNONE: Mr. Brennan?