5.Timothy E. Dowd — Direct/Cross
369 linesTIMOTHY E. DOWD, duly sworn
COURT CLERK: State your name, spell your last name for the record, keep your voice up and speak into the mic.
TIMOTHY E. DOWD: Timothy E. Dowd, D-O-W-D.
DIRECT EXAMINATION BY MR. WEINREB:
MR. WEINREB: Good afternoon.
TIMOTHY E. DOWD: Good afternoon.
MR. WEINREB: Where do you work?
TIMOTHY E. DOWD: I work for the Massachusetts State Police.
MR. WEINREB: How long have you worked there?
TIMOTHY E. DOWD: Twenty years.
MR. WEINREB: What is your official title?
TIMOTHY E. DOWD: Sergeant.
MR. WEINREB: What are your job responsibilities?
TIMOTHY E. DOWD: I'm currently assigned to the Collision Analysis and Reconstruction Section. I'm assigned to the northeastern part of the state where I'm a supervisor of seven troopers. The Collision Analysis and Reconstruction Section responds to fatal and serious-injury motor vehicle collisions. In addition to that, we respond to crime scenes where we use specialized equipment to document the evidence at the crime scenes.
MR. WEINREB: Would you mind pulling that microphone a little closer to your mouth so that both the court reporter and everyone else can hear you. What kind of special equipment do you use to document crime scenes?
TIMOTHY E. DOWD: We use Total Station equipment, and we also use GPS equipment which is essentially the Total Station that is run off of GPS satellites.
MR. WEINREB: What does it mean to document a crime scene using those kinds of devices?
TIMOTHY E. DOWD: When I respond to crime scenes, I am typically led around by a member of the crime scene section and they identify different pieces of evidence and they ask me to document it. In this case, using the GPS equipment, the equipment consists of a pole with a GPS receiver and also a data collector attached to it. I essentially put the pole on the piece of evidence and record each piece of evidence in the data recorder.
MR. WEINREB: What does it mean to record a piece of evidence in a data recorder?
TIMOTHY E. DOWD: So using the GPS equipment, our GPS equipment -- like I said, it runs off satellites, and it also attaches to something called the CORS network, which is a network of 18 bay stations throughout the state. When I go on a piece of evidence and I hit the button, it essentially tells it to collect the data. It takes a reading off of the satellites and it also, via Internet, connects to one of the CORS network stations -- in this case it was the Woburn station -- which gives me an accurate reading to 3 centimeters on each piece of evidence.
MR. WEINREB: So the bottom line is that it records the GPS coordinates of that item within 3 centimeters?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: What kind of training have you had?
TIMOTHY E. DOWD: So as far as forensic mapping, which is another term for recording that evidence, I've been in the Collision Analysis Reconstruction Section for 12 years. I've been using the Total Station equipment for the 12 years. I've been trained in the Topcon Total Station, which is the Total Station instrument. I received AutoCAD training back in 2002 when I entered the section. Since acquiring the GPS equipment, which was 2012, I was trained by Leica, which is the company that makes the equipment; I was trained by Massachusetts Department of Transportation, which they are the ones who set up the entire CORS network. So I was trained in utilizing the CORS network with the equipment. Additionally, I was trained by Main Technical Source on two different occasions. They're the company who sold that company to the state police.
MR. WEINREB: You used the term "AutoCAD" in there as part of your training. What does "AutoCAD" refer to?
TIMOTHY E. DOWD: So AutoCAD is a designer program that we use to create the diagram.
MR. WEINREB: So the GPS coordinates of various items, that information is most useful if it's plotted on a diagram?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Of a location?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: And the AutoCAD program is what enables you to draw the diagram and plot the points on it?
TIMOTHY E. DOWD: That's correct.
MR. WEINREB: How many accident scenes have you processed, the fatal and other serious accidents?
TIMOTHY E. DOWD: Approximately 400.
MR. WEINREB: How many crime scenes have you processed?
TIMOTHY E. DOWD: I'd say between 50 and 75.
MR. WEINREB: Did you help process the Laurel Street crime scene in Watertown?
TIMOTHY E. DOWD: I did.
MR. WEINREB: When did you arrive on Laurel Street?
TIMOTHY E. DOWD: At approximately 12 noon on April 19th.
MR. WEINREB: When did you begin processing the scene?
TIMOTHY E. DOWD: Shortly afterwards. I couldn't give an exact time. I would say approximately an hour after arriving.
MR. WEINREB: At the time you arrived, what was going on there?
TIMOTHY E. DOWD: There were evidence technicians collecting evidence and identifying evidence throughout the scene.
MR. WEINREB: Were they already picking it up off the street and putting it in bags?
TIMOTHY E. DOWD: Some of it was picked up. I believe most of it that I identified was picked up, and in its place were placards.
MR. WEINREB: What did you do when you got there?
TIMOTHY E. DOWD: So when I got there, we met with Detective Lieutenant Robin Fabry, who's in charge of our crime scene section. She assigned Trooper Colleen Tanguay to essentially walk through the crime scene with me and identify which evidence they wanted recorded.
MR. WEINREB: Did you take GPS readings of all the items of evidence they wanted recorded?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Were there other items on the scene that you didn't take GPS readings of?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: All right. Do you know which ones you focused on for the GPS readings?
TIMOTHY E. DOWD: So I focused on the pieces of evidence that Trooper Tanguay identified for me. Anything that she did not identify, I didn't record.
MR. WEINREB: After you got all that evidence -- or when you say you took the GPS readings, what did you do with that data after you got it?
TIMOTHY E. DOWD: So once I collected the data, it's stored in what's called a field book. The data collector is downloaded, so that field book data comes out of that and into my computer. Additionally, in order to create my diagram, we use georeferenced orthophotos, which are essentially aerial photographs with georeference data embedded within them.
MR. WEINREB: Mr. Bruemmer, may I have Exhibit 946 for the witness, please.
MR. WEINREB: Do you recognize that diagram?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: What is it?
TIMOTHY E. DOWD: That is a part of the diagram that I created utilizing the GPS data of Laurel and Dexter.
MR. WEINREB: There are a bunch of purple-colored images and placards on it. What are those? What do those represent?
TIMOTHY E. DOWD: All of the markers that were colored magenta represent ballistics evidence from the Ruger weapon.
MR. WEINREB: Is that an accurate diagram?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: The government offers 946.
MR. WATKINS: No objection.
THE COURT: Okay.
(Government Exhibit No. 946 received into evidence.)
BY MR. WEINREB:
MR. WEINREB: I want to begin by asking you about the houses, the trees, the street, the length of it, the shape of it, that's all pictured on this diagram. How did you get that information?
TIMOTHY E. DOWD: So once we finish at the scene, the next step is to bring in, as I mentioned a few seconds ago, an orthoimage. Massachusetts Department of Transportation contracts with a company that does flyovers. And doing the flyovers, they use an instrument that records photographs and it also records geodata. So I go on to the Mass. Department of Transportation website. They have a certain website called "Oliver." Within that website I can locate the area that I want to focus on, download that image. And the first thing I do is import that image into AutoCAD.
MR. WEINREB: So that's basically an overhead photograph of the area in question?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Please continue.
TIMOTHY E. DOWD: So that photo serves as basically a reference layer to my diagram. I then import all the points that I took that were collected at that scene, and those points fall on the image where they would be on the actual roadway. So using that image, the houses were drawn onto this diagram, the edges of the road, the sidewalks, the things that would basically act as more or less a canvas for my diagram.
MR. WEINREB: So this is a diagram version of an overhead photograph of the area?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: What about the magenta placards that are pictured here; what do they represent?
TIMOTHY E. DOWD: Those were collected with the GPS equipment at the scene.
MR. WEINREB: All right. You said earlier that they represent a Ruger ballistic evidence?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: So this is only shell casings and projectiles from the Ruger that was recovered from Laurel Street?
TIMOTHY E. DOWD: In this diagram, yes.
MR. WEINREB: In this. In other words, the magenta ones are just the Ruger?
TIMOTHY E. DOWD: Correct.
MR. WEINREB: And by the way, these magenta placards, do they actually have numbers on them?
TIMOTHY E. DOWD: They do.
MR. WEINREB: Those are the actual numbers that were on the placards?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Go back up.
MR. WEINREB: So looking all the way over here, for example, that's a ballistics item associated with the Ruger?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Okay. Same thing over here and over here?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Can we have Exhibit 945 -- no, actually --
So, your Honor, if we could move to the ELMO here.
THE COURT: Is this something that's in or --
MR. WEINREB: No. I'll show it to the witness.
BY MR. WEINREB:
MR. WEINREB: So this is Exhibit 945 for identification. Do you recognize that?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: What is that?
TIMOTHY E. DOWD: That's the diagram of the scene at Laurel and Dexter, and it has the explosive evidence as well as the ballistics evidence that was collected.
MR. WEINREB: Is this an accurate diagram to the best of your knowledge?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: The government would offer 945.
MR. WATKINS: No objection.
THE COURT: Okay.
(Government Exhibit No. 945 received into evidence.)
(Pause.)
THE COURT: It's not working, I guess is the technical term.
MR. WEINREB: It's on the screen on the ELMO.
MR. CHAKRAVARTY: Your Honor, it's on the screen but perhaps it's not on the right --
THE COURT: No.
MR. WEINREB: We're seeing it on the screen here.
THE COURT: You are, huh?
MR. CHAKRAVARTY: And the screen isn't moving.
THE COURT: You're getting the same thing I get, right? Are you seeing the image on your monitors?
MR. WEINREB: We're not seeing it on the monitors but we're seeing it on the screen on the ELMO, and the monitor is not showing what the ELMO is showing.
THE COURT: Right. That accurately describes the problem.
(Laughter.)
MR. WEINREB: Okay. Then I guess I'll just publish it to the jury by passing it along to them, if that's acceptable.
THE COURT: Fine.
(Exhibit 945 is published to the jury.)
BY MR. WEINREB:
MR. WEINREB: So this diagram has both the -- actually, I have some more copies of it --
(Pause.)
MR. WEINREB: So this diagram, in addition to the magenta placards, has placards of other colors as well, correct?
TIMOTHY E. DOWD: Yes, correct.
MR. WEINREB: And those, you said, represent items of explosives evidence that were recovered on the scene?
TIMOTHY E. DOWD: Correct.
THE COURT: Is that a second copy of the same thing?
MR. WEINREB: They're all the same thing.
THE COURT: Maybe one could go to the back? Oh, there are multiples? Never mind.
(Pause.)
MR. WEINREB: May I have Exhibit 1563 for the witness, please?
BY MR. WEINREB:
MR. WEINREB: So I asked you about how the -- I asked you about how the houses and the streets and so on, how you diagramed those, and you gave us the answer to that, and I asked you about how the ballistics evidence was marked, you testified about that, through the GPS device. Now I want to ask you about the cars that we see located on the street. How did you -- are those the cars that were actually there on that date when you were mapping the scene?
TIMOTHY E. DOWD: Are you asking about the diagram in front of me here?
MR. WEINREB: I am.
TIMOTHY E. DOWD: Okay. Yes.
MR. WEINREB: How did you determine the location of those -- how did you determine where to put them on your diagram?
TIMOTHY E. DOWD: So when we were mapping the evidence at the scene, we -- it was sort of a team process. Trooper Michael George, who's also assigned to the car section, was walking with me. Some of the cars that weren't identified as actually pieces of evidence were documented in a field sketch which is on the monitor now. He documented the plates on each car and he provided me with listings on each car so that I would know the make and type of the car. And then they were placed sort of by looking at the field sketch, not by actual points that were recorded at the scene.
MR. WEINREB: So you just said that what's on the screen right here is the field sketch that was made that day?
TIMOTHY E. DOWD: So the scene was much larger than this. There's several pages of the field sketch, but this is one of the pages of the field sketch, yes.
MR. WEINREB: The government offers 1563.
MR. WATKINS: No objection.
(Government Exhibit No. 1563 received into evidence.)
BY MR. WEINREB:
MR. WEINREB: So just so we get oriented, there's a -- when you were on the scene, did you notice a Honda Civic that was in the middle of the street?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: And is that the car I've circled right here?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: In the very middle of the diagram?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: And then there was a cruiser that had come to a stop by essentially crashing into another car?
TIMOTHY E. DOWD: Correct.
MR. WEINREB: And that's this right here, correct?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: And now I've circled the other horizontal vehicle at the end of a driveway right above where the Honda is. And then there are several cars parked in the driveway there?
TIMOTHY E. DOWD: That's correct.
MR. WEINREB: All right. And did you notice that one of them had a -- the bottom of a pressure cooker embedded in its side?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: All right. And is that this car right here, the one with the number 1 on it?
TIMOTHY E. DOWD: Correct.
MR. WEINREB: Can we go back to Exhibit 946 -- actually, can you put 946 and this one side by side? Okay.
MR. WEINREB: Okay. So looking at 946 on the right and the sketch on the left, on the right, on 946, it appears as if in the driveway the two cars closest to the sidewalk are roughly -- they're parked the same distance into the driveway; in other words, the rears of those cars would more or less line up in your diagram, correct?
TIMOTHY E. DOWD: Correct.
MR. WEINREB: All right. But on the sketch that's not the case. Is that right?
TIMOTHY E. DOWD: Correct.
MR. WEINREB: Okay. On the sketch, the car on the left is further up. Is that right?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Okay. When you created this diagram on the right, did you believe it was important the precise placement of cars in a driveway?
TIMOTHY E. DOWD: No; I was more concerned with just placing the cars so that it would indicate that there were cars in that driveway.
MR. WEINREB: But based on your memory as well as on photographs of the scene that you have reviewed, which is the more accurate depiction of where the cars in the driveway were?
TIMOTHY E. DOWD: The field sketch.
MR. WEINREB: Can I have Exhibit 1559, please. And this should just be for the witness for a moment.
MR. WEINREB: Is this a fair and accurate photo of the scene that was taken that day?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: The government offers 1559.
MR. WATKINS: No objection.
(Government Exhibit No. 1559 received into evidence.)
BY MR. WEINREB:
MR. WEINREB: So this is looking down Laurel Street towards the direction where the Honda and the Mercedes were?
TIMOTHY E. DOWD: Correct.
MR. WEINREB: In fact, you see the Honda?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Can you circle that?
TIMOTHY E. DOWD: Can I circle it?
MR. WEINREB: Yes. Just using the pad of your finger, you can just press hard on the screen and you'll be able to draw a circle on it.
TIMOTHY E. DOWD: (Witness complies.)
MR. WEINREB: Okay. So that's one Honda. Let me ask you about the Honda that's in the middle of the street.
TIMOTHY E. DOWD: (Witness indicates.)
MR. WEINREB: All right. So you've circled the Honda that's sort of near the right-hand side of the photo. And then do you see the cruiser that essentially crashed?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: Can you circle that?
TIMOTHY E. DOWD: (Witness complies.)
MR. WEINREB: All right. I'm going to erase those now. Do you see this mark right here in the middle of the street?
TIMOTHY E. DOWD: I do.
MR. WEINREB: I've circled a black mark and -- essentially in the center of the picture. Do you know what that is?
TIMOTHY E. DOWD: I do.
MR. WEINREB: What is it?
TIMOTHY E. DOWD: It was sort of a divot out of the road with some black soot and -- well, that's essentially what it was.
MR. WEINREB: Okay. Is that the seat of an explosion?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: And then can you circle the car that had the pressure cooker embedded in its side?
TIMOTHY E. DOWD: (Witness complies.)
MR. WEINREB: Okay. That was also a Honda?
TIMOTHY E. DOWD: Yes.
MR. WEINREB: So based on this photo and on your own memories of the scene, is there a direct line from the seat of the blast right to that car in between the cruiser on the right and the car parked on the left-hand side of the driveway?
TIMOTHY E. DOWD: Yes, there is.
MR. WEINREB: All right. Was there ample room for the --
MR. WATKINS: Objection. Leading here.
MR. WEINREB: Okay.
BY MR. WEINREB:
MR. WEINREB: Was there or was there not in your -- based on your observation, room for a pressure cooker to fit in between those two cars and embed itself in the side of the Honda?
TIMOTHY E. DOWD: There was.
MR. WEINREB: No further questions.
CROSS-EXAMINATION BY MR. WATKINS:
MR. WATKINS: Good afternoon.
TIMOTHY E. DOWD: Good afternoon.
MR. WATKINS: So you created not only the maps we saw, 945 and 946, but a number of aerial diagrams for this case?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Showing you Exhibit 775, is that one of the maps that you created for purposes of this case?
TIMOTHY E. DOWD: Yes, it is.
MR. WATKINS: And just to be clear, we are talking about this section that's here, where the cars are inaccurately drawn on there?
TIMOTHY E. DOWD: Correct.
MR. WATKINS: And that's because you didn't take the GPS right at the tires as you did for other vehicles?
TIMOTHY E. DOWD: Correct.
MR. WATKINS: But aside from that inaccuracy, this is your map that you drew?
TIMOTHY E. DOWD: It is, yes.
MR. WATKINS: Not only did you go to the cars and the ballistic evidence that we saw on 945 and 946, you marked all kinds of ballistic evidence all over that scene, correct?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Did you also mark ballistic evidence for a few blocks away from another incident?
TIMOTHY E. DOWD: Where are you --
MR. WATKINS: Down on Adams Street in Watertown. Did you go down there also?
TIMOTHY E. DOWD: I may have.
MR. WATKINS: All right. But in any case, you marked all kinds of different evidence here at the scene, including around Laurel and Dexter, right?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: You created those maps, 945 and 946, about where the Ruger cartridges were and the explosive materials were. Did you create a map of where law enforcement ballistic evidence was found?
MR. WATKINS: And it's fair to say that the maps you did create were at the request of the U.S. Attorney's Office in this case?
TIMOTHY E. DOWD: So I created a diagram initially that had all the evidence. It was further broken down from that point.
MR. WATKINS: Oh, I see. So there was actually a diagram at one point of all of the evidence there?
TIMOTHY E. DOWD: I believe there were 448 pieces of evidence collected -- or not pieces of evidence, rather, points recorded in total.
MR. WATKINS: And you -- points -- so it wasn't just ballistic evidence, it was cars, as you did other things that people thought were important, correct?
TIMOTHY E. DOWD: Yes, sir.
MR. WATKINS: And there was a map that included all of these, one of these diagrams that you created, of all of that. Is that correct?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Did you provide that to the U.S. Attorney's Office also?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: So that other map that you have would have documented evidence in this intersection of Laurel and Dexter, right?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: And there were many, many cartridge casings and other items of interest in that intersection. Is that correct?
TIMOTHY E. DOWD: As I explained before, I pretty much document the placards. I'm not sure what the placards are. You could tell me Placard 452, that's what I record it as.
MR. WATKINS: So there were many, many placards down around this area that you documented?
TIMOTHY E. DOWD: Well, throughout the entire scene. I can't say for that corner how many were there.
MR. WATKINS: Turning to Laurel and Dexter specifically, there were many, many placards in that area that you took measurements of?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Did you also take measurements from here about where Dic Donohue was injured?
MR. WEINREB: Objection, your Honor.
THE COURT: Sustained.
MR. WATKINS: I'm sorry?
THE COURT: Sustained.
MR. WATKINS: I'm not understanding the --
THE COURT: Relevance.
MR. WATKINS: -- basis.
THE COURT: Relevance.
MR. WEINREB: Relevance and stating facts that haven't been elicited from this witness or that he hasn't testified to.
THE COURT: All right. I think relevance is enough.
BY MR. WATKINS:
MR. WATKINS: You have created -- well, let me go back. You talked about the AutoCAD program and how it gets material from aerial photos and georeferences, things of that nature?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Does the AutoCAD also create this green and orange and gray map that we see before us?
MR. WATKINS: That is something that you create?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Turning now to this specific location, I see you've written "144 Dexter Avenue" on this building here. Is that correct?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: And what appears to be two driveways going out into the street on Dexter Avenue. Is that accurate?
TIMOTHY E. DOWD: I believe one of them was a walkway, but yes.
MR. WATKINS: Okay. So this was actually a driveway here, and that's the way you created it?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Is Exhibit 771 in evidence yet? I believe it is.
COURT CLERK: Yes, it is.
BY MR. WATKINS:
MR. WATKINS: I'm going to show you Exhibit 771. That's the actual aerial photograph of this area -- I'm sorry about that -- of the Laurel and Dexter area, amongst other things, which I'm showing here. Do you see that?
TIMOTHY E. DOWD: I do, yes.
MR. WATKINS: And do you see where it's marked "144"?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Based on that diagram you saw, what you see here, is that 144 Dexter Avenue?
TIMOTHY E. DOWD: (No verbal response.)
MR. WATKINS: And can you point out where that driveway is that you put on your map?
TIMOTHY E. DOWD: I can't see it with the shadows. It looks like it's possibly above the "144," but it's hard to see.
MR. WATKINS: I'm sorry?
TIMOTHY E. DOWD: It's hard to see in this image that you're showing me.
MR. WATKINS: Let's try this, then. I'm going to put this over here for now.
MR. WATKINS: And if I could have now the monitor just go to the witness. Let me get that one bigger too.
MR. WATKINS: Is this a map also of that same scene?
TIMOTHY E. DOWD: Yes.
MR. WATKINS: Now, you're familiar with Google Earth?
TIMOTHY E. DOWD: I am.
MR. WATKINS: And Google Earth is indeed a program developed by Google that relies on global positioning satellites, aerial photos and georeferences quite like you rely on for the AutoCAD, right?
TIMOTHY E. DOWD: Similarly, yes.
MR. WATKINS: And so this picture, does that accurately diagram the same scene that we saw in 771?
MR. WEINREB: I object to this on relevance grounds.
THE COURT: Sustained.
MR. WATKINS: Your Honor, perhaps we could be seen quickly at sidebar?
THE COURT: Okay.
(Discussion at sidebar and out of the hearing of the jury:)
MR. WATKINS: Judge, the issue is the government has opened -- promised the jury that a stray bullet was -- caused the injury of Dic Donohue. One of the -- the placement of one of the officers and particularly this driveway seems to suggest that -- I believe to the jury -- that one of Tamerlan Tsarnaev's bullets -- or one of the bullets from the end of the street could have caused that. I do not believe that's factually accurate.
While the government has put this into play and made it unclear, I think there is a lot of relevance to where that driveway actually is.
MR. WEINREB: Well, even if that were so, it's way beyond the scope of the direct. This witness simply took GPS readings of bullets and evidence on the street. If they want to put on in their case evidence of who shot the officer, then we can address the relevance, but it's not appropriate to start putting in Google Earth and asking him to authenticate that when he can't possibly do it. He has no personal knowledge of what the scene looks like from the air.
MR. WATKINS: He identified just now --
THE COURT: Well, I guess the question is: Is this an issue in the case, whether the shooting of Donohue was the defendant or the deceased brother?
MR. WEINREB: The government has no information definitely who or how -- who shot Dic Donohue.
THE COURT: Right. So there's no -- any conclusion on that would be speculation.
MR. WEINREB: I believe so, yes.
THE COURT: So it shouldn't be in the case on either side.
MR. WEINREB: We're not going to argue that the defendant or his brother shot Officer Donohue because we can't say.
MR. WATKINS: It's already in because he said a stray bullet right in the openings. If we stop now, the jury is allowed to draw whatever speculation they do -- they want. It needs to be made clear. The government should stipulate --
MR. WEINREB: I don't think the government in the opening said a stray bullet hit Dic Donohue. Dic Donohue got shot. Obviously, a bullet hit him. We did not say either one of the brothers shot Dic Donohue. We didn't suggest it. All I said in my opening statement was a stray bullet hit Dic Donohue. That's the opposite of arguing the defendant or his brother was the one who shot him.
MR. MELLIN: And, your Honor, one of the witnesses testified they did not recover the bullet from Dic Donohue so no one will be able to say this one or that one fired this shot. So it's all speculation.
MR. WATKINS: I do not intend to say specific -- I need to rule out Tamerlan Tsarnaev's gun. It's physically impossible, I believe. And if I were allowed to go through this --
THE COURT: Well, you have evidence to that effect -- that the gun had been abandoned -- from one of the officers. It hit him in the arm.
MR. WATKINS: I do. But on the basis of the evidence so far, I do believe a juror could say as he was shooting down there, one of those stray bullets hit Dic Donohue. And if the juror -- if some juror could say that, I think we have the ability to react to that.
THE COURT: No, I don't think it's a big-enough issue. Don't worry about it. So...
MR. WATKINS: I'm sorry?
THE COURT: No, I don't think it's -- I don't think it's relevant.
MR. WATKINS: Judge, the whole testimony will take about five minutes. Perhaps we could do a voir dire of it now that we've reached one o'clock. I can go through and show the Court, because I think there's extreme relevance here. If the government, as they say, has no evidence that Tamerlan Tsarnaev -- it might have been Tamerlan Tsarnaev, it might have been somebody else. They simply -- it's not true. I mean, that's what they want to argue, that's what they want the jury to believe.
THE COURT: Well, no, they haven't gotten to argument. I'm not going to -- they will be able to argue that.
MR. WATKINS: But, your Honor, what if they say a stray bullet -- if they continue to say a stray bullet hit Mr. Tsarnaev [sic], a juror sitting there could believe wrongly, factually wrongly, that --
THE COURT: It's not related to any of the actual offenses, is it?
MR. WATKINS: An actual defense?
THE COURT: Offense. Any of the charged offenses?
MR. WATKINS: Yes, it does. He is charged with Dic Donohue being injured as a result of fleeing.
THE COURT: Okay.
MR. WATKINS: As you'll recall, the defense -- we do have a defense on that, that there was no intentionality by Mr. Tsarnaev to cause injury to Mr. Donohue.
MR. WEINREB: There's nothing in the indictment that charges either --
THE COURT: So the injury is derivative of the general actions?
MR. WEINREB: Right. That but for the actions of the Tsarnaev brothers --
THE COURT: Which would include getting shot by a police officer.
MR. WEINREB: That's correct.
MR. WATKINS: But they've made it an issue in this case.
THE COURT: Yeah. No, I don't see it. So that being the case, do you have --
MR. WATKINS: Let me just take a look at my notes. I don't think I have anything else.
THE COURT: All right.
(In open court:)
MR. WATKINS: Just a very quick question here. A couple of questions.
THE COURT: Okay.
BY MR. WATKINS:
MR. WATKINS: I'm showing you 771 again, and I'm going to highlight this block -- or this portion of the picture, Laurel and Dexter Street. Can you point out where 144 Dexter Avenue is by tapping next to it?
MR. WEINREB: Your Honor, I object again. There's no relevance.
THE COURT: Well, go ahead. You could do that.
BY MR. WATKINS:
MR. WATKINS: Just tap on 144.
TIMOTHY E. DOWD: (Witness complies.)
MR. WATKINS: Can you tap on 61 Laurel Street, in front -- in the street of 61 Laurel Street?
TIMOTHY E. DOWD: (Witness complies.)
MR. WATKINS: That's all I have, your Honor.
THE COURT: Anything else?
MR. WEINREB: No, your Honor.
THE COURT: All right.
All right, sir. You may step down. Thank you.
TIMOTHY E. DOWD: Thank you.
(The witness is excused.)
THE COURT: And we will take the lunch recess.
COURT CLERK: All rise for the Court and the jury. The Court will take the lunch recess.
(The Court and jury exit the courtroom and there is a recess in the proceedings at 1:05 p.m.).
(The Court and jury entered the courtroom at 2:11 p.m.)
MR. WEINREB: Good afternoon, your Honor. The United States calls Christopher Donahue.