4.Matthew Hess — Direct/Cross
206 linesMATTHEW HESS, duly sworn
COURT CLERK: State your name, spell your last name for the record, keep your voice up and speak into the mic so everyone can hear you.
MATTHEW HESS: My name is Matthew Hess. My last name is spelled H-E-S-S. I'm a trooper with the Massachusetts State Police.
DIRECT EXAMINATION BY MS. PELLEGRINI:
MS. PELLEGRINI: Good morning, Trooper Hess.
MATTHEW HESS: Good morning.
MS. PELLEGRINI: Can you tell the ladies and gentlemen of the jury how long you've been employed by the Massachusetts State Police?
MATTHEW HESS: Thirteen years.
MS. PELLEGRINI: And what is your current assignment?
MATTHEW HESS: My current assignment is with Crime Scene Services in Worcester.
MS. PELLEGRINI: What does that mean?
MATTHEW HESS: Crime Scene Services, what we do is we respond to crime scenes, unattended deaths. And what we do is we take photographs, videotape, and also processes fingerprints and collect other evidence that are on the scenes.
MS. PELLEGRINI: And how long have you been doing that assignment?
MATTHEW HESS: Approximately, now, eight years.
MS. PELLEGRINI: All right. Now, you said you're assigned to Worcester?
MATTHEW HESS: Correct.
MS. PELLEGRINI: Do you, though, have occasion to be assigned to other locations?
MATTHEW HESS: Yes, as needed.
MS. PELLEGRINI: As needed? And do you work with anyone else?
MATTHEW HESS: We work with the district attorneys' offices and, as needed, different district attorneys' offices when they need crime scenes to be processed.
MS. PELLEGRINI: All right. And in that capacity, did you have occasion on or about April the 21st of 2013 to respond to a location for evidence collection?
MATTHEW HESS: Yes.
MS. PELLEGRINI: And can you tell the jury about that.
MATTHEW HESS: I responded to Watertown PD, the headquarters there in Watertown. There was located a black Mercedes in the garage. I was helping and assisting ballistics process the vehicle for ballistic evidence.
MS. PELLEGRINI: And where exactly was the Mercedes located when you arrived at that location?
MATTHEW HESS: It was in the garage at Watertown PD.
MS. PELLEGRINI: All right.
MS. PELLEGRINI: May I have Exhibit 795 up, which is already in evidence.
MS. PELLEGRINI: Trooper Hess, do you recognize the vehicle in this photo?
MATTHEW HESS: Yes.
MS. PELLEGRINI: Particularly the one on the left side, the Mercedes?
MATTHEW HESS: Yes.
MS. PELLEGRINI: All right. This is not the location at which you examined it, correct?
MATTHEW HESS: Correct.
MS. PELLEGRINI: But is this, in fact, the vehicle that you went to look at?
MATTHEW HESS: That is the vehicle.
MS. PELLEGRINI: All right. Thank you. And when you got --
MS. PELLEGRINI: You can take that down.
MS. PELLEGRINI: -- to the location at Watertown PD in the garage, what did you do?
MATTHEW HESS: Ballistics was there first and they told me what they were going to do. Then I received a phone call from Middlesex. A few troopers, they were asking me to look for a specific piece of evidence.
MS. PELLEGRINI: What were you asked to look for?
MATTHEW HESS: I was asked to look for a CD. But what I first did was just photograph the vehicle as it was in place. And then I worked my way, taking different sides of the vehicle, photographs. And then the vehicle did not have power to it, so we had to call a tow truck to get power to the vehicle, to put a battery to it.
MS. PELLEGRINI: All right. And once that happened, once the battery was attached, what happened?
MATTHEW HESS: I turned on the radio and pushed the button to get the CD out.
MS. PELLEGRINI: And so you extracted the CD at that time?
MATTHEW HESS: What I first did when the CD was extracted, I took photographs of it in place, and then took the photo of the CD as it was in the vehicle and then placed it in the bag.
MS. PELLEGRINI: Okay.
MS. PELLEGRINI: So if I may approach, your Honor?
THE COURT: All right.
BY MS. PELLEGRINI:
MS. PELLEGRINI: Trooper Hess, I'm going to show you what's been marked for identification as Government's Exhibit 863, and ask you to look at that item and ask you if you recognize that.
MATTHEW HESS: Yes, that's the bag.
MS. PELLEGRINI: All right. That's the bag into which you placed the CD?
MATTHEW HESS: Yes.
MS. PELLEGRINI: How do you recognize it as such?
MATTHEW HESS: I recognize it. It's my handwriting on the bag and -- all my writing on the bag from the vehicle.
MS. PELLEGRINI: All right. And have you had occasion prior to coming into court today to actually open the bag and review the article therein?
MATTHEW HESS: Yes, I did.
MS. PELLEGRINI: And is that, in fact, the same CD that you retrieved from the Mercedes on April the 21st?
MATTHEW HESS: It is.
MS. PELLEGRINI: Could you remove it from the bag and show it to the jury, please.
MATTHEW HESS: (Witness complies.)
MS. PELLEGRINI: Thank you, Trooper Hess. Trooper Hess, did you also have occasion in looking at the vehicle to make any observations particularly of the bumper of the vehicle, if you recall?
MATTHEW HESS: The bumper?
MS. PELLEGRINI: Yes.
MATTHEW HESS: I took photos of the vehicle, just saw the vehicle as it was, and that -- I know that the bumper was damaged. I didn't make any notes of it.
MS. PELLEGRINI: Let me have just for the witness, please, your Honor, Exhibit 782.
MS. PELLEGRINI: Trooper Hess, do you recognize the image before you?
MATTHEW HESS: Yes.
MS. PELLEGRINI: And is that, in fact, the bumper of the Mercedes?
MATTHEW HESS: It is.
MS. PELLEGRINI: And is that, in fact, in the same condition as when you observed it in the garage?
MATTHEW HESS: Yes.
MS. PELLEGRINI: All right. And particularly did you make any observations about damage or any other items connected to or on the bumper, if you recall?
MATTHEW HESS: I just recall that we were doing ballistic evidence. I don't recall seeing anything of significance on the bumper, just taking photographs of it in place.
MS. PELLEGRINI: All right. But this does fairly and accurately represent the bumper as you saw it?
MATTHEW HESS: Yes, that is fair and accurate.
MS. PELLEGRINI: Your Honor, the government would move this and ask it be published at this time.
MR. BRUCK: No objection.
THE COURT: Okay.
(Government Exhibit No. 782 received into evidence.)
BY MS. PELLEGRINI:
MS. PELLEGRINI: Trooper Hess, I am going to draw on the screen -- hopefully I will draw on the screen -- a circle. Do you recall making observations of this area on the bumper?
MATTHEW HESS: I remember seeing that it was damaged, yes.
MS. PELLEGRINI: Do you recall anything else? Any discoloration on the bumper at all?
MATTHEW HESS: I don't remember.
MS. PELLEGRINI: All right. Thank you.
MS. PELLEGRINI: That can go down.
May I have a moment, your Honor?
(Counsel confer off the record.)
MS. PELLEGRINI: Thank you. No further questions for Trooper Hess.
MS. CLARKE: Just one moment.
(Pause.)
MS. PELLEGRINI: I'm sorry, your Honor. If I did not offer before the trooper leaves 863, I would offer it now.
THE COURT: I'm sorry. The CD?
MS. PELLEGRINI: The CD.
MR. BRUCK: Subject to our motion.
THE COURT: Yes. It will be admitted.
(Government Exhibit No. 863 received into evidence.)
MR. WATKINS: May we have just a moment, your Honor?
(Counsel confer off the record.)
MR. WATKINS: May we have the camera? Thank you.
CROSS-EXAMINATION BY MR. BRUCK:
MR. BRUCK: Good morning, Trooper Hess. I'm David Bruck. I'm one of Mr. Tsarnaev's attorneys.
MR. BRUCK: If we could have for the witness, your Honor, Exhibit 3039.
MR. BRUCK: Trooper Hess, is that one of the photographs that you took that morning on the 21st?
MATTHEW HESS: Yes. Yes.
MR. BRUCK: And does that fairly and accurately represent the right side of the Mercedes about which you were testifying a moment ago?
MATTHEW HESS: Yes.
MR. BRUCK: All right. I'm going to show you a series of additional photos and ask you whether all of them -- each of them fairly and accurately represents the Mercedes as you saw it on the 21st of April, 2013.
MR. BRUCK: For the witness, 3040, please.
MATTHEW HESS: That's a fair and accurate representation.
MR. BRUCK: 3041?
MATTHEW HESS: Yes.
MR. BRUCK: 3042?
MATTHEW HESS: Yes.
MR. BRUCK: 3043?
MATTHEW HESS: Yes.
MR. BRUCK: 3044?
MATTHEW HESS: Yes.
MR. WATKINS: Hold on.
MR. BRUCK: I'm getting ahead of -- I'm sorry.
MATTHEW HESS: Yes.
BY MR. BRUCK:
MR. BRUCK: Let's see. That was 3043. And then 3044?
MATTHEW HESS: Yes.
MR. BRUCK: Skipping now to 3046?
MATTHEW HESS: Yes.
MR. BRUCK: Thank you. 3047?
MATTHEW HESS: Yes.
MR. BRUCK: 3048?
MATTHEW HESS: Yes.
MR. BRUCK: And 3049?
MATTHEW HESS: Yes.
MR. BRUCK: To summarize, these are all pictures that you took of the Mercedes that day?
MATTHEW HESS: Correct.
MR. BRUCK: And they fairly and accurately represent how it appeared at that time?
MATTHEW HESS: Yes.
MR. BRUCK: We offer.
MS. PELLEGRINI: Your Honor, the government objects and we wish to be heard at sidebar.
THE COURT: Okay.
(Discussion at sidebar and out of the hearing of the jury:)
MS. PELLEGRINI: Your Honor, to the extent that this is outside of the scope and it becomes the defense's witness, we've received no notice in advance of any of these photographs being moved into evidence. And the second ground is the relevance of any of what is shown in the photographs sought to be admitted.
MR. BRUCK: Your Honor, the government has moved these in to show the --
MS. PELLEGRINI: No, the defense.
MR. BRUCK: I'm sorry. No, the government has moved in the photograph of the fender to show and to corroborate their testimony about driving down the street and banging into a police cruiser, and there has been testimony that -- that, in turn, relates to the testimony about how the defendant attempted to make his escape.
These are photographs, of course, showing the trajectories of an enormous number of bullets which supports the inference that the defendant would be ducking and not likely to have at all times seen where he was going. And we think that this is responsive to the evidence that was introduced on direct from this witness having to do with the way the defendant was driving down the street.
MS. PELLEGRINI: Your Honor, the way the defendant was driving down the street was a factual matter and it's been testified to and simply supported by the evidence. This -- asking the jury to draw an inference where there is no evidence before the jury about what the defendant was doing while he was driving far exceeds what has been asked of the witness.
THE COURT: The objection is overruled.
(In open court:)
THE COURT: They're admitted.
(Defense Exhibit Nos. 3040 through 3044 and 3046 through 3049 received into evidence.)
MR. BRUCK: Thank you, your Honor.
BY MR. BRUCK:
MR. BRUCK: Trooper, I would like to start with 3039.
MATTHEW HESS: Yes, that's a fair and accurate representation.
MR. BRUCK: Thank you. And what do the markings appear to be that are highlighted with tape in these photographs?
MATTHEW HESS: I believe those to be bullet holes.
MR. BRUCK: Those are all bullet holes on the right side of the vehicle?
MATTHEW HESS: Yes.
MR. BRUCK: All right. And turning to 3040, if you could tell us what part of the car that appears to be.
MATTHEW HESS: That seems to be, I believe, one of the pillars on the passenger side.
MR. BRUCK: On the passenger's side. And again, that shows bullet holes?
MATTHEW HESS: I believe it does.
MR. BRUCK: What is depicted in 3041?
MATTHEW HESS: The white tape signifies bullet holes.
MR. BRUCK: And 3042?
MATTHEW HESS: Again, bullet holes.
MR. BRUCK: Can you see how many bullet holes there appear to be in the windshield?
MATTHEW HESS: I'm not a ballistician, but there appears to be seven.
MR. BRUCK: Approximately seven?
MATTHEW HESS: Approximately.
MR. BRUCK: Including several that are on the driver's side?
MATTHEW HESS: Yes.
MR. BRUCK: 3043 is a close-up that you took of the driver's side of the windshield, correct?
MATTHEW HESS: Correct.
MR. BRUCK: Showing that the windshield was penetrated by how many bullet holes?
MATTHEW HESS: It appears to be six.
MR. BRUCK: And 3044, again, depicts numerous bullet holes on the driver's side of the car?
MATTHEW HESS: Correct.
MR. BRUCK: Would you tell us what 3046 appears to show.
MATTHEW HESS: It appears to be a bullet through a headrest.
MR. BRUCK: And do you know from looking at this picture, or do you recall, which headrest that is in the car?
MATTHEW HESS: I believe that's the center of the rear seat.
MR. BRUCK: In the rear seat? Okay. Drawing your attention now to 3047.
MATTHEW HESS: That's the driver's side headrest.
MR. BRUCK: That is how many bullet holes apparently passing through, or have passed through -- have hit the driver's side headrest?
MATTHEW HESS: I believe that's one. Again, I'm not a ballistician. I'm not an expert on projectile.
MR. BRUCK: Okay. And again 3048. More bullet holes in --
MATTHEW HESS: Yes, in the headrest.
MR. BRUCK: And that would be both the driver's side and passenger's side headrest in the front?
MATTHEW HESS: Yes.
MR. BRUCK: And then the -- what is depicted by 3049?
MATTHEW HESS: That is the rear of the vehicle.
MR. BRUCK: And what does that indicate?
MATTHEW HESS: The window shattered.
MR. BRUCK: Thank you, Trooper Hess. That's all we have.
MS. PELLEGRINI: No redirect, your Honor.
THE COURT: Thank you, Trooper.
(The witness is excused.)
MR. WEINREB: Your Honor, the next witness will be rather lengthy so...
THE COURT: All right. Why don't we take the morning recess at this point.
COURT CLERK: All rise for the Court and the jury. The Court will take the morning recess.
(The Court and jury exit the courtroom and there is a recess in the proceedings at 11:02 a.m.)
COURT CLERK: All rise for the Court and the jury.
(The Court and jury enter the courtroom at 11:29 a.m.)
COURT CLERK: Be seated.
MR. WEINREB: The United States calls Patrick Moynihan.