Commonwealth v. Read — Trial ArchiveBrian Albert — Redirect/Recross
227 linesREDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good afternoon, sir.
MR. ALBERT: Good afternoon.
MR. LALLY: Now, you were asked some questions about the week prior to being at the Waterfall. At some point, you were at the Hillside, correct?
MR. ALBERT: Yes.
MR. LALLY: You were there with friends and family; is that correct?
MR. ALBERT: Yes.
MR. LALLY: And you weren't specifically there with either Mr. O'Keefe or the defendant, correct?
MR. ALBERT: No, I was not.
MR. LALLY: And same with respect to the Waterfall on January 28th. You were there with friends and family; is that correct?
MR. ALBERT: Yes.
MR. LALLY: You weren't specifically there with Mr. O'Keefe or the defendant, correct?
MR. ALBERT: No. They came unrelated to anything I was doing.
MR. LALLY: And you were shown some video from the Waterfall from January 28th in which you were speaking at a sort of section of the table, correct?
MR. ALBERT: Yes.
MR. LALLY: And was the defendant the only person in that section of the table?
MR. ALBERT: No.
MR. LALLY: There were other people around her, behind her; is that correct?
MR. ALBERT: Yes. It looked like there were other people at the table as well as situated right behind where she was Sitting.
MR. LALLY: And those other people around her or behind her, those are people that you knew far better on January 28th than the defendant?
MR. ALBERT: Yes. Those are my relatives and friends, and that's why I was at that location.
MR. LALLY: Now, you were asked some questions about going over to Ms. McCabe's house later on in the afternoon of the 29th, correct?
MR. ALBERT: Yes.
MR. LALLY: And why did you go over there?
MR. ALBERT: I went to Jen's house because she's my sister- in-law. She was going through an awful time that morning, as we all were. And I wanted to be there to comfort her if she needed anything. Because we are so close, I didn't want her to feel like this was too much for her to handle.
MR. LALLY: And, again, how long have you known Ms. McCabe?
MR. ALBERT: I've known Jen since she was probably six or seven years old. She's like a sister to me.
MR. LALLY: Now, at your home on January 28th, into January 29th when people came back after the Waterfall, did you at any point in time go into the basement area of your home?
MR. ALBERT: No.
MR. LALLY: Did Brian Higgins at any time go into the basement area of your home?
MR. ALBERT: Not that I know of.
MR. LALLY: Did you see anyone go into the basement area of your home during the time that you were there after coming home from the Waterfall?
MR. ALBERT: No.
MR. LALLY: Now, you were asked some questions about your dog, Chloe and that she wasn't great with strangers. What exactly did you mean by that?
MR. ALBERT: All I meant was that she wasn't overly affectionate with strangers. She's a heavy dog. Not everybody likes dogs. So if there's going to be people at the house that don't know the dog, they might not particularly want her around them.
MR. LALLY: And were you more concerned about the people in the house that didn't know Chloe or are you more concerned about Chloe, herself?
MR. ALBERT: The people in the house. Never has the dog to my knowledge been aggressive to anybody except for the time that there was a fight between two dogs.
MR. LALLY: Now, you were shown Exhibit 66. That was sort of a drawing of your house. do you recall that?
MR. ALBERT: Yes.
MR. LALLY: And had you ever seen that prior to today?
MR. ALBERT: No.
MR. LALLY: And do you recall specifically within the drawing or the artist's rendering of your house there were certain lights on around the garage and the front door?
MR. ALBERT: I did notice that. Yes.
MR. LALLY: And do you recall whether or not those lights were on when you came home from the Waterfall on January 29th?
MR. ALBERT: I don't recall. But oftentimes, those lights are off and sometimes the bulbs don't even work.
MR. LALLY: And, when Ms. McCabe comes into your bedroom sometime after 6:00 a.m. on the 29th --
MR. ALBERT: Yes.
MR. LALLY: -- that was following a day in which you woke up in New York City and went to a funeral; is that correct?
MR. ALBERT: Yes. I went to a funeral that morning in New York.
MR. LALLY: And that was for a fallen police officer from the New York City Police Department?
MR. ALBERT: Yes. A police officer in New York that had been murdered while on duty, and that was his funeral.
MR. LALLY: And did you know that police officer whose funeral you attended?
MR. JACKSON: Objection.
JUDGE CANNONE: The objection is sustained. Next question.
BY MR. LALLY:
MR. LALLY: Now, with reference to -- you then drive all the way home from New York to Massachusetts, correct?
MR. ALBERT: Yes.
MR. LALLY: And you went out to a couple of different places, had a couple of drinks, correct?
MR. ALBERT: Yes.
MR. LALLY: And then went back to your home and went to bed sometime around 2:00 a.m. or so?
MR. ALBERT: Yes. After two.
MR. LALLY: And so about how long had you been asleep from the time that you dozed off to the time that Ms. McCabe comes into your bedroom that morning?
MR. ALBERT: Only a few hours. Probably three, four hours. Three and a half, four hours.
MR. LALLY: Now, in relation to waking up that morning, you testified that you did not go outside, correct?
MR. ALBERT: Yes.
MR. LALLY: And why not?
MR. ALBERT: Initially when I woke up and I was told what was going on out front, I looked out my window, and I saw some emergency vehicles. I did not see John at that time. I came downstairs with my wife, and she asked where was John. And Jen said that he --
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. Next question.
BY MR. LALLY:
MR. LALLY: What was your understanding of where Mr. O'Keefe was when you came downstairs?
MR. JACKSON: Objection.
JUDGE CANNONE: Ask it differently, Mr. Lally.
BY MR. LALLY:
MR. LALLY: In reference to when you came downstairs, what was your understanding of medically what was going on outside your house?
MR. JACKSON: Objection.
JUDGE CANNONE: The objection is sustained.
BY MR. LALLY:
MR. LALLY: Was there any reason for you to go outside of your house at that time?
MR. ALBERT: No.
MR. LALLY: Why not?
MR. ALBERT: At that time, there was no victim out in front of my house. So there was no first aid for me to give. There was nothing for me to give. There was nothing I could do.
MR. LALLY: Now, you were asked some questions about the sort of bulkhead in the back of your house, correct?
MR. ALBERT: Yes.
MR. LALLY: Where is that bulkhead in relation to the bay windows or the kitchen that you were testifying about earlier?
MR. ALBERT: So the bulkhead door is directly under the bay windows in the kitchen. The bulkhead door opens up, almost directly into the windows, obviously without hitting them, but it opens up into the front of the bay windows.
MR. LALLY: And what you saw as far as that video that was shown to you, that's not what the bulkhead looked like. That's not what the door looked like at that time on January 28th or 29th of 2022?
MR. ALBERT: No. Those are not the doors we had.
MR. LALLY: And, as far as the bulkhead was concerned, when that bulkhead was open around that time, what, if any, kind of noise would that bulkhead make?
MR. ALBERT: A loud, creaking, old rusty metal sound when you opened it.
MR. LALLY: Was that something that if it was opened and you were in the kitchen area, you could hear it?
MR. ALBERT: Yes.
MR. LALLY: Now, in reference to that bulkhead, what, if any, security or what -- was it open? Was it locked? How was that left?
MR. ALBERT: So the bulkhead door was shut, and it was broken. So sometimes you could turn the metal thing to lock it and sometimes it would be hard to do. But the wooden door that goes into the basement has a lock on the doorknob. That is a door that we keep locked because we don't use it.
MR. LALLY: Now, as far as from the bulkhead, you were shown in that video a gate that opens up to the front yard area of the house; is that correct?
MR. ALBERT: Yes.
MR. LALLY: And what, if any, other gates are located on the fence in your backyard?
MR. ALBERT: So we also have a gate on the rear part of the fence. And there is also a gate on the opposite of the house.
MR. LALLY: And the gate in the rear area of the fence, where does that lead to?
MR. ALBERT: So that leads to some woods, and then eventually you'll hit some train tracks.
MR. LALLY: Now, with respect to your phone, that was something that you had upgraded prior to any notification that you had received from the district attorney's office or anything in relation to preserving the phone; is that correct?
MR. ALBERT: Yes.
MR. LALLY: Now, with respect to that, as far as the information contained within the phone, there are certain types of information, are you familiar with, being sort of backed up by the cloud?
MR. ALBERT: Yes.
MR. LALLY: Would that include calls?
MR. ALBERT: It could.
MR. LALLY: Could that also include texts?
MR. ALBERT: Yes.
MR. LALLY: Could that include photos?
MR. ALBERT: Yes.
MR. LALLY: Could that include contacts?
MR. ALBERT: Yes.
MR. LALLY: And the information that you were shown as far as certain call logs or call records, as far as you know, was that generated after that September of 2022 date?
MR. ALBERT: Yes.
MR. LALLY: Now, with respect to the preservation, that was in regard to a motion that counsel had filed for your physical phone, correct?
MR. ALBERT: Yes.
MR. LALLY: Are you also aware of a judge's order denying that repeatedly as far as them gaining access to your physical phone?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. ALBERT: Yes. It was denied on multiple occasions.
JUDGE CANNONE: I'll strike the "multiple occasions."
BY MR. LALLY:
MR. LALLY: You were asked some questions about boxing, correct?
MR. ALBERT: Yes.
MR. LALLY: And the boxing that you did, that was in relation to a group associated with the Boston Police Department; is that correct?
MR. ALBERT: Yes.
MR. LALLY: And when was the last time that you were involved in any kind of actual boxing match?
MR. ALBERT: Close to 20 years ago.
MR. LALLY: Now, with respect to some of the training that you were talking about, with respect to the Boston Police Department, you were given some training as far as defensive tactics; is that correct?
MR. ALBERT: Yes.
MR. LALLY: And is that something that is standard that is sort of given and administered to every Boston police officer?
MR. ALBERT: Yes. Within the academy, you go to the defensive tactics training.
MR. LALLY: And that would include John O'Keefe, correct?
MR. ALBERT: Yes.
MR. LALLY: Now, as far as your house where you used to live at 34 Fairview Road, what, if anything, did you observe or notice with reference to cell phone reception in that area of your home?
MR. ALBERT: So oftentimes using the phone within my house, it seemed like it was, and it's a slang term, a dead zone for the phone. The reception wasn't great.
MR. LALLY: And is that something that occurred over the time that you lived there?
MR. ALBERT: Yes.
MR. LALLY: Now, with reference to the phone and prior to the intimate moment that you shared with your wife sometime after 2:00 a.m., do you recall whether or not the phone screen was locked at that time? Were you checking that at that particular time?
MR. ALBERT: I don't recall the exact timing, but I know that it was opened sometimes and then it was closed, obviously, at some point. But I don't know the exact time.
MR. LALLY: So the phone may not have been locked at the time that you began that situation with your wife?
MR. ALBERT: It may not have been.
MR. LALLY: With reference to the call logs and phone records that you were on the phone, to the best of your memory, is that the entirety of the phone calls that you made around that time?
MR. ALBERT: No. It looks like it's selective people and numbers.
MR. LALLY: And, with respect to those conversations, if you recall, what, if anything, in general terms were you discussing with either those people in the logs or other people in general?
MR. ALBERT: In general, I'm sure there was some discussion about the awful thing that had taken place. And there may have been other calls unrelated, as well.
MR. LALLY: May I have one moment, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Mr. Albert, on the early morning of January 29th, 2022, did John O'Keefe ever come into your house that night?
MR. ALBERT: John never came into my house that night. He would have been welcomed, and the defendant would have been welcomed with open arms had they come in. And I wish they had. I really do.
MR. LALLY: Were you ever even aware that John O'Keefe or the defendant were anywhere in the area of your house during that early morning of January 29th?
MR. ALBERT: I was not.
MR. LALLY: I have nothing further, Your Honor.
MR. JACKSON: Your Honor, very briefly.
JUDGE CANNONE: Okay.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Mr. Albert, you talked about cell phone reception not being good in your house. When did you and Mr. Lally talk about that cell phone reception issue?
MR. ALBERT: What?
MR. JACKSON: The cell phone reception issue in your house.
MR. ALBERT: It came up during one of the preps.
MR. JACKSON: Which prep?
MR. ALBERT: I don't really remember which prep. Probably the last one.
MR. JACKSON: I thought you only had one prep with Mr. Lally.
MR. ALBERT: Well, we had the prep before the grand jury, and then I had the prep for this trial. That's two.
MR. JACKSON: So you brought up the fact that you had bad cell phone reception in that preparation?
MR. ALBERT: The conversation came up, yes.
MR. JACKSON: Was Mr. Lally taking notes?
MR. ALBERT: I don't recall if he was taking notes.
MR. JACKSON: Was this recorded?
MR. ALBERT: I don't believe so.
MR. JACKSON: And where did you say this conversation took place?
MR. ALBERT: So the prep was at the district attorney's office which is in Canton.
MR. JACKSON: This morning when I asked you, you said you couldn't quite remember where it took place.
MR. ALBERT: You're right. I couldn't remember this morning.
MR. JACKSON: And I asked you could it have been the D.A.'s office. And now your memory is refreshed?
MR. ALBERT: Yes.
MR. JACKSON: What refreshed your memory between this morning and now?
MR. ALBERT: I was just thinking about it in my head and reminded myself that it was the D.A.'s office. You caught me off-guard when you had asked me. I didn't have it at the top of mind.
MR. JACKSON: Did you talk to Mr. Lally over the lunch hour?
MR. ALBERT: Briefly.
MR. JACKSON: Did you bring up the fact that you had bad cell reception over the lunch hour?
MR. ALBERT: Just now, no.
MR. JACKSON: What did you talk about over the lunch hour?
MR. ALBERT: Just what was -- how much time I was going to have left on the stand. That was really about it.
MR. JACKSON: So you and Mr. Lally talked about the fact that you'd been on cross-examination for two anda half hours and your conversation consisted of, you've probably got another 10 minutes?
MR. ALBERT: Yeah. I think he was going to lunch or doing something. So...
MR. JACKSON: So you didn't talk about the substance of your testimony?
MR. ALBERT: No.
MR. JACKSON: He didn't tell you what questions he was going to ask you on redirect?
MR. ALBERT: He maybe mentioned one thing he may ask me, but that was it.
MR. JACKSON: Like what was that?
MR. ALBERT: Just he was going to ask about what happened at the house in the morning. You know, some of the questions on redirect. That's all.
MR. JACKSON: Meaning he was going to ask you the question about whether John came in the house?
MR. ALBERT: No, not necessarily.
MR. JACKSON: He was going to ask you about whether or not you had bad cell reception at the house?
MR. ALBERT: No.
MR. JACKSON: What was he going to ask you?
MR. ALBERT: He was going to ask about the morning of the incident, about coming downstairs and why I didn't go outside.
MR. JACKSON: Did he tell you what he thought would be helpful for the Commonwealth?
MR. ALBERT: No.
MR. JACKSON: Did he tell you how he thought you should answer that question?
MR. ALBERT: No.
MR. JACKSON: He did ask you about a situation concerning motion to preserve, correct?
MR. ALBERT: No.
MR. JACKSON: I'm sorry. He asked you on redirect about the motion to preserve?
MR. ALBERT: Oh, yes. Yes.
MR. JACKSON: Okay. And he mentioned that there was a motion that had been denied for us to get, for the defense, to get access to your physical phone, correct?
MR. ALBERT: Yes.
MR. JACKSON: You're aware that that motion was denied in October of 2022, correct?
MR. ALBERT: Yes.
MR. JACKSON: You had already gotten rid of your phone a month earlier, hadn't you?
MR. ALBERT: Yes.
MR. JACKSON: And the preservation order from the judge was still in place when you got rid of that phone, wasn't it?
MR. ALBERT: No. I believe the phone was upgraded prior to the preservation order.
MR. JACKSON: Oh. Right. The day before.
MR. ALBERT: Yes.
MR. JACKSON: Got it.
MR. JACKSON: That's all I have, Your Honor.
JUDGE CANNONE: All right, Mr. Albert. You are all set, sir.
MR. ALBERT: Okay. Thank you. Thank you, jury.
(Whereupon, the witness is excused.)
JUDGE CANNONE: Your next witness, Mr. Lally?
MR. LALLY: Yes, Your Honor. The Commonwealth would call Brian Albert, Jr. to the stand.
JUDGE CANNONE: Okay.
MR. LALLY: Your Honor, with the Court's permission, the papers that were left up there with the last witness, I don't think they were marked as anything.
JUDGE CANNONE: Okay.