Commonwealth v. Read — Trial ArchiveBrian Higgins — Cross/Redirect/Recross
431 linesPROCEEDINGS May 28, 2024
(Court in session.)
(Defendant present. Jury present.)
JUDGE CANNONE: I'll see counsel at sidebar.
(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: Good morning. I am going to give a little instruction on Mr. Jackson not being here and they are not to consider it.
MR. YANNETTI: That's fine.
JUDGE CANNONE: But you're not to say anything about it.
MR. YANNETTI: I won't.
JUDGE CANNONE: Okay. Thank you.
(Whereupon, the sidebar conference concluded.)
COURT CLERK: 22-117, Commonwealth versus Karen Read. Can I have counsel identify themselves for the record?
MR. LALLY: Adam Lally, for the Commonwealth. Good morning, Your Honor.
JUDGE CANNONE: Good morning, Mr. Lally.
MS. MCLAUGHLIN: Good morning, Your Honor. Laura McLaughlin, for the Commonwealth.
JUDGE CANNONE: Good morning, Ms. McLaughlin.
MS. LITTLE: Good morning, Your Honor. Elizabeth Little, on behalf of Ms. Read.
JUDGE CANNONE: Good morning, Ms. Little.
MR. YANNETTI: Good morning, Your Honor. David Yannetti, for Karen Read.
JUDGE CANNONE: Good morning, Mr. Yannetti. Good morning, jurors. So before we begin, I just want to mention that Attorney Jackson is not here today. Please don't consider that in any way. Certainly don't hold it against Ms. Read for him not being here. Just don't consider it at all in your deliberations. So I do have to ask you those three questions. Were you all able to follow my instructions and refrain from discussing this case with anyone? Everyone said "yes" or 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" or nodded affirmatively. Did anyone happen to see, hear or read anything about this case since we left here on Friday? Everyone said "no." All right. Let's bring Mr. Higgins in, please. And, Mr. Yannetti, you will be taking over?
MR. YANNETTI: I will, Your Honor.
MR. HIGGINS: Good morning, Your Honor.
JUDGE CANNONE: Good morning.
Whereupon, BRIAN HIGGINS, Resuming having been first previously Sworn, was examined and testified under oath as follows:
MR. YANNETTI: May I proceed, Your Honor?
JUDGE CANNONE: Yes. CONTINUED CROSS-EXAMINATION
BY MR. YANNETTI:
MR. YANNETTI: Sir, you provided to investigators what you claim were the complete text exchanges between yourself and Karen Read and yourself and John O'Keefe, correct?
MR. HIGGINS: What I provided was the complete -- I let them know it was a complete exchange between myself and the defendant. And I said that I may have had other text strings at other times with Mr. O'Keefe.
MR. YANNETTI: I am going to proceed to ask you a series of questions which call for a yes-or-no answer. Can we agree that you'll answer yes or no to those questions?
MR. HIGGINS: If I can answer yes or no to the best of my ability, I will.
MR. YANNETTI: All right. I'm going to keep the question very Simple, sir. Okay? You did not provide to investigators any other text messages between you and anyone else?
MR. HIGGINS: That's correct.
MR. YANNETTI: In September of 2022, you were served with a preservation order for your phone, were you not?
MR. HIGGINS: Yes.
MR. YANNETTI: After September of 2022, you never received anything in writing that cancelled or lifted that preservation order, correct?
MR. HIGGINS: That's correct.
MR. YANNETTI: After September of 2022, you made the decision to dispose of your phone without consulting anybody about the decision to throw out your phone, correct?
MR. HIGGINS: Yes.
MR. YANNETTI: Before you threw the phone away, you did a factory reset of it; did you not?
MR. HIGGINS: No, I did not.
MR. YANNETTI: Well, you've previously testified that you testified in another proceeding on June 1st, correct, of 2023?
MR. HIGGINS: Yes.
MR. YANNETTI: Prior to that June lst testimony, you met with some people and gave a statement on May 5th of 2023; did you not?
MR. HIGGINS: I did meet with them. I don't know if that was the date.
MR. YANNETTI: Okay. It was prior to June, correct?
MR. HIGGINS: Yes.
MR. YANNETTI: All right. May 5th doesn't sound wildly inaccurate, does it?
MR. HIGGINS: No.
MR. YANNETTI: And, when you met with those people on or about May 5th, we'll say, or whatever date it was prior to June ist of 2023, you told them that you did a factory reset of your phone ending in 5421, did you not?
MR. HIGGINS: I don't recall that, no.
MR. YANNETTI: All right.
MR. HIGGINS: I don't recall that, no. I don't recall making that statement.
MR. YANNETTI: You don't recall what you said about the factory reset during that interview, we'll call it, in May of 2023, correct?
MR. HIGGINS: That's correct.
MR. YANNETTI: May I approach, Your Honor?
JUDGE CANNONE: Yes.
BY MR. YANNETTI:
MR. YANNETTI: I direct your attention to the first highlighted line there, sir. If you would read that silently to yourself and look up at me when you're done.
MR. HIGGINS: (Witness complies.)
MR. YANNETTI: If I may approach?
JUDGE CANNONE: Yes.
BY MR. YANNETTI:
MR. YANNETTI: Having read that document, sir, does that refresh your memory about telling those people in May of 2023 that you do a factory reset of your phone?
MR. HIGGINS: That's not accurate. I did not tell them that. And I also didn't tell them that I saved texts with my father.
MR. YANNETTI: All right. So your testimony is that they got it wrong, correct?
MR. HIGGINS: My testimony is I didn't make those statements.
MR. YANNETTI: Your testimony is that they got it wrong. Yes or no.
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: Sustained.
BY MR. YANNETTI:
MR. YANNETTI: Well, in any case, you took the SIM card out of your phone, correct?
MR. HIGGINS: No. What I testified is that --
MR. YANNETTI: Did you take the SIM card out of your phone? Yes or no.
MR. HIGGINS: I don't know.
MR. YANNETTI: Did you testify that that's what you do when you get rid of phones, sir?
MR. HIGGINS: What I said was that might have been the extent of it if I was to have done that.
MR. YANNETTI: And you either cut up the SIM or ripped it up, correct?
MR. HIGGINS: I believe what I testified to was --
MR. YANNETTI: I'm not asking you what you testified to. I'm asking you today, did you either cut up the SIM card or rip it up?
MR. HIGGINS: Cut it up or broke it.
MR. YANNETTI: And you will agree with me that cutting up or breaking the SIM card destroys the SIM card; does it not?
MR. HIGGINS: The card, itself, yes.
MR. YANNETTI: That would have been the purpose in terms of cutting it up or ripping it up, to destroy it, correct?
MR. HIGGINS: Well, so nobody else could use the phone.
MR. YANNETTI: Well, that was my next question. But the purpose of cutting up or ripping up the SIM card is to destroy the SIM card; is it not?
MR. HIGGINS: Yes.
MR. YANNETTI: And you wanted to make sure that somebody couldn't put that SIM card in their phone and potentially access your data, correct?
MR. HIGGINS: No. That wouldn't be the reason why.
MR. YANNETTI: Okay. Well, we already talked about the fact that you testified under oath on June lst of 2023, correct?
MR. HIGGINS: Yes.
MR. YANNETTI: And you were under oath when you were testifying on June lst of 2023, correct?
MR. HIGGINS: Yes.
MR. YANNETTI: You swore to tell the truth?
MR. HIGGINS: Yes.
MR. YANNETTI: You raised your right hand?
MR. HIGGINS: That's correct.
MR. YANNETTI: And June of '23, June lst of 2023, was about a year ago, correct?
MR. HIGGINS: Yes.
MR. YANNETTI: It was about a year closer to your throwing your phone away, correct?
MR. HIGGINS: Yes.
MR. YANNETTI: And, in that testimony that you gave on June lst of 2023, did you say the following: (As read), "I made sure that somebody couldn't put it in their phone"?
MR. HIGGINS: Yes. I did say that.
MR. YANNETTI: In fact, by either cutting up or ripping up your SIM card, you also knew that that SIM card couldn't be put back in your phone either, correct?
MR. HIGGINS: Yeah. I believe that would be correct.
MR. YANNETTI: And you'll agree with me that you took that destroyed SIM card and put it in a trash bag, did you not?
MR. HIGGINS: I believe it went in a trash bag, yes.
MR. YANNETTI: Well, you used a passive voice. It went in a trash bag. Did it fly out of your hand unexpectedly into a trash bag, sir?
MR. HIGGINS: No, sir. It would have been disposed of with the phone.
MR. YANNETTI: No. I understand. But are you reluctant to say that you put it in a trash bag, sir?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that? Are you reluctant to say that?
MR. HIGGINS: No, Your Honor. I put it ina trash bag or with my trash.
BY MR. YANNETTI:
MR. YANNETTI: And then you also took your phone, now without the SIM card, and you put that ina trash bag too, did you not?
MR. HIGGINS: Yes, sir.
MR. YANNETTI: Then you drove to a military base, and you threw both the destroyed SIM card and the phone into a dumpster, did you not?
MR. HIGGINS: Well, I was cutting through the base, and I believe how I testified was --
MR. YANNETTI: Did you drive through a military base, sir?
MR. HIGGINS: I was cutting through a base, yes.
MR. YANNETTI: Did you drive to it?
MR. HIGGINS: Yes, sir.
MR. YANNETTI: And then you put both the destroyed SIM card and the phone, itself, which were in a trash bag, into a dumpster on that military base, did you not?
MR. HIGGINS: I believe that's what I did, yes.
MR. YANNETTI: And, as you were driving away, you knew that that destroyed SIM card and the phone would be gone forever, correct?
MR. HIGGINS: Yes. I threw it away.
MR. YANNETTI: And, before you drove away, you did not transfer anything from your old phone to the new phone, correct?
MR. HIGGINS: That's correct.
MR. YANNETTI: You lost all of your photos on that phone, did you not?
MR. HIGGINS: Whatever photos I had on there, I did, yes.
MR. YANNETTI: You lost all your videos on that phone, did you not?
MR. HIGGINS: To the extent if I had any.
MR. YANNETTI: You lost all of your other text messages besides the ones that you had with Karen Read and John O'Keefe, correct?
MR. HIGGINS: That's correct.
MR. YANNETTI: And you knew that you did have text messages on that old phone with Kevin Albert?
MR. HIGGINS: He is a friend. Most likely.
MR. YANNETTI: You also had text messages on your phone with Nicole Albert?
MR. HIGGINS: Most likely, yes.
MR. YANNETTI: And you had text messages on your phone with Brian Albert?
MR. HIGGINS: Yes.
MR. YANNETTI: It was important to you that no one see those text exchanges that you had with those three members of the Albert family?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it.
MR. HIGGINS: No, sir. That's not true.
BY MR. YANNETTI:
MR. YANNETTI: You took no steps to preserve those text messages, did you?
MR. HIGGINS: That's correct.
MR. YANNETTI: You did not ask your friend, Matt Kelch, the agent, to help you extract those text messages, did you?
MR. HIGGINS: That's correct.
MR. YANNETTI: And, when you went to that machine, you did not extract them yourself, did you?
MR. HIGGINS: He walked me through, and I did do the extraction.
MR. YANNETTI: You did not extract the three strands of text messages with Nicole Albert, Kevin Albert and Brian Albert to preserve from that machine, did you not?
MR. HIGGINS: No. I did not extract those.
MR. YANNETTI: So the only place you knew they existed was on your old phone, correct?
MR. HIGGINS: Yes. That's correct.
MR. YANNETTI: The same phone that you put into a dumpster on a military base with the SIM card removed from the phone and destroyed, correct?
MR. HIGGINS: Well, I did throw the SIM card and the phone in the military base.
MR. YANNETTI: Right. And the SIM card was destroyed. You've already testified to that.
MR. HIGGINS: I said to the extent of if I did that, I would have done that.
MR. YANNETTI: And we are talking about the actual phone that would have had your text messages, again, with Brian, Nicole and Kevin Albert, correct?
MR. HIGGINS: Yes, because the motion was denied.
MR. YANNETTI: Well, you've already testified, sir, earlier that you never received anything in writing that either cancelled or lifted the original preservation order, correct?
MR. HIGGINS: That is correct.
MR. YANNETTI: You knew when you were throwing that phone and the destroyed SIM card in the dumpster that from that day forward, no one would ever be able to access the content of what you and Brian Albert had discussed by text messages on your old phone, correct?
MR. HIGGINS: Anybody.
MR. YANNETTI: I have nothing further.
JUDGE CANNONE: Mr. Lally?
MR. LALLY: Thank you, Your Honor.
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good morning, sir.
MR. HIGGINS: Good morning, sir.
MR. LALLY: If I could take you back just for a moment to January 29th, early in the morning. You're pulling away from the Albert home, correct?
MR. HIGGINS: Yes.
MR. LALLY: And you had the plow down on the front of your Jeep Wrangler; is that correct?
MR. HIGGINS: Initially, it was still on the ground. Yes.
MR. LALLY: And about how long a distance again was that on the ground before you pulled that up?
MR. HIGGINS: Maybe a foot.
MR. LALLY: And, with relation to the curb specifically in front of the area with the flagpole and the fire hydrant, how close to the curb were you when you were pulling away from the Albert house?
MR. HIGGINS: I believe I looked both ways. There were no vehicles coming in either direction. I pulled out into traffic. And, because that is a one-lane road, if there's no other vehicles, I'd be more to the center of that road.
MR. LALLY: Now, it may be a silly question, but with reference to the front of your Jeep Wrangler, that didn't have any red plastic pieces or anything like that on the front of it, correct?
MR. HIGGINS: At what time? At what point?
MR. LALLY: At any time.
MR. HIGGINS: No.
MR. LALLY: And that's the same Jeep Wrangler that you then drove to the Canton Police Station immediately after?
MR. HIGGINS: Directly from there, yes.
MR. LALLY: And then you drove that same Jeep Wrangler back to your home in West Roxbury?
MR. HIGGINS: Yes.
MR. LALLY: And then you drove that same Jeep Wrangler back to Fairview Road later on that morning?
MR. HIGGINS: Yes.
MR. LALLY: And then you drove that same Jeep Wrangler from Fairview Road to the Canton Police Station again later that morning, correct?
MR. HIGGINS: Yes.
MR. LALLY: Now, the text communications between yourself and Ms. Read, again, who initiated those?
MR. HIGGINS: The defendant did.
MR. LALLY: And that was on January 12th of 2022, correct?
MR. HIGGINS: About 8:23 in the evening, I believe.
MR. LALLY: Now, with reference to that -- what she claimed happened in Aruba, that was something she mentioned to you via text, correct?
MR. HIGGINS: The incident, itself, I believe was through text. But I believe the actual location was when she had stopped by my place in West Roxbury.
MR. LALLY: So that's to my point. So, sir, with regard to the incident, itself, she referenced that both via text and in person to you, as well?
MR. HIGGINS: Yes. That's correct.
MR. LALLY: And the kiss that she planted on you in the garage at Mr. O'Keefe's house, that was again something that she mentioned both in text and verbally in person; is that correct?
MR. HIGGINS: Yes. That's correct.
MR. LALLY: Now, as far as the ghosting that you were asked questions about last Friday, there were some text messages between you and the defendant on January 19th, correct?
MR. HIGGINS: What was the date? I'm sorry.
MR. LALLY: January 19th.
MR. HIGGINS: 19th?
MR. LALLY: Yes.
MR. HIGGINS: Yes.
MR. LALLY: And do you recall if there were any text messages between you going either way between yourself and the defendant between January 19th and January 23rd?
MR. HIGGINS: I think there were. I'm not 100 percent.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Sir, I'm going to show you what's been marked as Exhibit 104A. I direct your attention to sort of that there, specifically, the back page but a little bit before that, as well. If you could, just let me know whether or not there are any text messages between yourself and the defendant, Ms. Read, between January 19th and January 23rd?
MR. HIGGINS: Yes. It looks like the 19th and the 23rd, both text messages.
MR. LALLY: Okay. But, in between those dates, what I'm asking about is January 20th, January 21st, January 22nd. There's no text messages on any of those dates, correct?
MR. HIGGINS: I don't see any.
MR. LALLY: And then as far as between January 23rd and January 28th, January 28th is when you texted her while you were both within the Waterfall, correct?
MR. HIGGINS: On the 28th, yes.
MR. LALLY: So between the 23rd and the 28th. So on January 24th, January 25th, January 26th, January 27th, you didn't send any text messages to her. You didn't receive any phone call, correct?
MR. HIGGINS: I don't believe so, no.
MR. LALLY: And then beyond that one text message that you testified to on the 28th, the next text message you received from the defendant was in regard to John being dead on the 29th, correct?
MR. HIGGINS: Yes. That's correct.
MR. LALLY: Now, you were asked some questions about these text messages and whether or not you discussed them with various people. Did you discuss those text messages with anyone?
MR. HIGGINS: Not to my knowledge, no.
MR. LALLY: Why not, sir?
MR. HIGGINS: To be honest with you, I mean, on a personal level, I kind of keep things to myself. I was a little embarrassed. I wasn't really proud of them. It kind of maybe didn't show me in a good light with respects that I was John's friend.
MR. LALLY: And so with regard to that text on January 28th that you had sent her in the Waterfall, she didn't respond as she was in the Waterfall with her boyfriend, Mr. O'Keefe, correct?
MR. HIGGINS: That's correct.
MR. LALLY: Now, if the defendant did not have a boyfriend, wasn't dating Mr. O'Keefe, would you have been interested in pursuing anything further with the defendant?
MR. HIGGINS: I can't say. I don't know.
MR. LALLY: What, if any, reservations would you have based on the conversations that you had?
MR. HIGGINS: Just everything was so out of left field. I just found it hard to believe.
MR. LALLY: Now, with reference to going to the Canton Police Station after Fairview Road and moving the vehicles around, which is closer to the Canton Police Station, your home in West Roxbury or the home on Fairview Road?
MR. HIGGINS: The home on Fairview Road would be.
MR. LALLY: And, with the impending weather, why was it that you went to the Canton Police Station to move the vehicles around on that occasion?
MR. HIGGINS: Because, as I stated before, if I didn't do it then, I would have had to come back in the morning. I knew the weather was going to be getting worse. I knew that I had a long day. I had been in New York. I had been out the night before in New York and I just thought it was best to get them moved at that point.
MR. LALLY: Now, you were asked some questions on Friday about a phone call or something in a call log from about 2:00 o'clock or 2:22 in the morning of January 29th. Do you recall that?
MR. HIGGINS: I recall the questions, yes.
MR. LALLY: And you have an iPhone or you had an iPhone; is that correct?
MR. HIGGINS: Yes.
MR. LALLY: Now, when you make a call on an iPhone, as you sort of place that call or you hit the button, there's sort of a timer that comes up and it starts counting off seconds as the call is being connected, correct?
MR. HIGGINS: I believe so.
MR. YANNETTI: Objection.
JUDGE CANNONE: I'll allow it.
BY MR. LALLY:
MR. LALLY: And so seconds are ticking off while the call is being connected, correct?
MR. HIGGINS: I believe so, yes.
MR. LALLY: And then, if a call is connected, then it starts ringing and, unless someone picks up immediately, there are further seconds that are ticking off on an iPhone while that call is ringing through, correct?
MR. HIGGINS: I believe so.
MR. YANNETTI: Objection.
JUDGE CANNONE: The objection is sustained as to the form.
BY MR. LALLY:
MR. LALLY: You were asked some questions about a call or a callback between yourself and Brian Albert around that time frame. Do you recall that?
MR. HIGGINS: Yes.
MR. LALLY: And you were trying to explain sort of what your answers were in that prior proceeding in reference to that, correct?
MR. HIGGINS: Yes.
MR. LALLY: What, if anything else, did you want to explain to the jury in regard to that?
MR. YANNETTI: Objection.
JUDGE CANNONE: In that form, I'll sustain it.
BY MR. LALLY:
MR. LALLY: You were asked some specific points as far as your testimony in a prior proceeding, correct?
MR. HIGGINS: Yes.
MR. LALLY: What, if anything else, did you say in reference to that in the prior proceeding?
MR. YANNETTI: Objection.
JUDGE CANNONE: Sustained as to the form, Mr. Lally.
BY MR. LALLY:
MR. LALLY: Did you ever speak with Brian Albert at 2:22 in the morning on January 29th?
MR. HIGGINS: No, I did not.
MR. LALLY: Do you recall making a call or receiving a call from Brian Albert around that time?
MR. HIGGINS: No, I do not.
MR. LALLY: You were asked some questions on Friday regarding keycard access within the Canton Police Station, correct?
MR. HIGGINS: Yes.
MR. LALLY: Now, as far as that door that you utilized, you had testified on Friday that you would sort of park down towards the back and then come in through the sally port area; is that correct?
MR. HIGGINS: So I believe I was referring to one of the two sally port doors.
MR. LALLY: And that was sort of your cut-through in order to get to your office?
MR. HIGGINS: Yes.
MR. LALLY: Now, with reference to that particular area as far as going in and out from the parking lot and the sally port, does the keycard -- do you have to swipe the keycard in order to go in and to go out?
MR. HIGGINS: So sometimes if you're close to the door, maybe having a conversation with somebody, it could activate the keycard, itself. But, physically, if I'm going into the door, I would take it out and I would swipe it. I would hold it to the card reader. Some are more sensitive than others, is what I'm trying to say.
MR. LALLY: And, similar to when you're, when you're going out, does that require sort of swiping or using the keycard in order to go outside?
MR. HIGGINS: So there are some doors that you need to swipe out of. And I believe the booking room and the sally port, itself, are doors such as those.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: I'm showing you a document. I place one before you now. If you could just take a look at that and look up when you're finished?
MR. HIGGINS: (Witness complies.)
MR. LALLY: Do you recognize that, sir?
MR. HIGGINS: Yes.
MR. LALLY: Is that the same document that was -- essentially the same document that was placed before you on Friday?
MR. HIGGINS: Yes.
MR. LALLY: Okay. And that's a 167-page document encapsulating different key swipes within the Canton Police Station on January 29th, 2022, correct?
MR. HIGGINS: Yes.
MR. LALLY: And, from those 167 pages, at least on that first page, does there appear to be about 27 entries there?
MR. HIGGINS: Yes.
MR. LALLY: And so from 27 entries over the course of 167 pages, that would be somewhere north of 4,500 entries within those 167 pages. Does that sound right?
MR. HIGGINS: Well, I went to public high school, but I'll take your word for it.
MR. LALLY: And would it surprise you that there are 18 entries within those --
MR. YANNETTI: Objection.
BY MR. LALLY:
MR. LALLY: -- 4,500 that include --
JUDGE CANNONE: Not would it surprise him. Ask the question again, Mr. Lally.
BY MR. LALLY:
MR. LALLY: Do you know that there are 18 entries that contain your name within those records?
MR. YANNETTI: Objection. Form of the question.
JUDGE CANNONE: No. I'll allow it.
MR. HIGGINS: Are you asking me if in the 167 pages there's only 18 entries with me?
BY MR. LALLY:
MR. LALLY: Yes.
MR. HIGGINS: I did not know that, no.
MR. LALLY: Would that surprise you as far as your -- well, let me rephrase that. Now, with respect to your travels around Canton Police Station on that particular day, would you quarrel with 18 entries as far as where you went and what you did in Canton P.D. that day?
MR. HIGGINS: No. In and out. No.
MR. LALLY: Now, sir, with respect to your phone, you were provided notation in regard to a preservation order in regard to your phone sometime in September of 2022, correct?
MR. HIGGINS: I received a subpoena on September 30th of 2022.
MR. LALLY: And that was in regard to a hearing in which counsel for the defendant was seeking your physical phone as evidence, correct?
MR. HIGGINS: Yes.
MR. LALLY: And is it your understanding or were you informed after that day, sometime in early October of 2022, that that motion had been denied?
MR. HIGGINS: So I believe it was October 21st of that year I was made aware that that was denied on actually October 5th.
MR. LALLY: Are you aware of a 30-day period by which a defendant has to file some sort of notice of appeal of a motion?
MR. YANNETTI: Objection.
JUDGE CANNONE: I'll allow it.
MR. HIGGINS: I know typically there's appeal periods. In this particular sense, I wasn't familiar with the preservation order, itself, what a preservation order was with respects to -- that was kind of all new to me. Usually in an investigation that I'm conducting, it's a search warrant. I take the phone. I don't have to ask people to preserve it through a court order, if that makes sense.
BY MR. LALLY:
MR. LALLY: And so when was it that you disposed of your phone?
MR. HIGGINS: It was about two months after that.
MR. LALLY: And why was it that you disposed of your phone?
MR. HIGGINS: Because it was beaten. It was broken up. And I had already had a new phone. The only explanation is I threw it away. That's it.
MR. LALLY: Now, beyond sort of this case, what, if anything else, was going on with reference to your personal phone that led you to want to get rid of it?
MR. HIGGINS: So in July of 2022, I had a target of an investigation I was working who alleged that -- he called me on my personal cell phone. And, when I questioned him as to the fact of how he obtained my personal telephone number, he told me that his girlfriend had obtained it off of Opensource internet, which I later confirmed that that number was out there.
MR. LALLY: What, if any, concerns did that raise for you, sir?
MR. HIGGINS: Well, I had a lot of concerns. And that's -- so July 22 is when I probably started thinking about, you know what, I got to get rid of the telephone number, itself.
MR. LALLY: And a lot of the work that you were doing, at least at that time, was undercover work; is that correct?
MR. HIGGINS: Before this case right here, yes.
MR. LALLY: Now, as far as the SIM card that you're talking about, do you have any specific memory of doing anything with that SIM card?
MR. HIGGINS: No, and that's how I testified in that other hearing, that to the extent of what I would have done is I would have cut it up or broke it. And the concern would be that that -- to my understanding, that's not holding any photos. That's not holding videos. That's not holding my contacts. It's holding phone information, itself.
MR. LALLY: And, as far as photos or videos, what, if anything like that, did you even have on your phone?
MR. HIGGINS: I didn't have much in the sense that I'm divorced. I don't have kids. I didn't have the typical memories that somebody would have had on their phone that they wanted to preserve. They were more like the text messages with the defendant where it would be a drink glass at a bar, food. Something along those lines. I had more of a connection to my work phone and more of a value to my work phone than I did my personal phone.
MR. LALLY: Now, as far as that military base down the Cape, how often -- let me ask you this: When you lived at the residence in Barnstable County, what would you do with your trash down there?
MR. HIGGINS: Well, if I was going through and I had the trash or some recycling and I was either getting gas on the base or hitting the duty-free, I would occasionally toss a bag of trash in one of the dumpsters there. Or, if I forgot, I would throw it out when I got back to my other property. And, at the time at one point, I was living in Canton and I had the house there. And then I sold it. And then I had the in-law that I was renting. So I had other options to throw things away.
MR. LALLY: Did you have trash pickup at your residence in Barnstable?
MR. HIGGINS: No.
MR. LALLY: So if you were to throw away anything, any sort of trash, it would have to be either at the base or at one of your other homes?
MR. HIGGINS: It would be somewhere else.
MR. LALLY: And so with reference to the phone and the SIM card, if you even did, did you drive specifically to the base to throw your phone away or were you throwing it away with other trash?
MR. HIGGINS: It was just with other trash.
MR. LALLY: Now, you were shown some call logs or some toll records or something to that effect last Friday with respect to calls that you had made or received around January 29th, 2022; is that correct?
MR. HIGGINS: Yes.
MR. LALLY: And was that anything that you had specifically preserved and given to the troopers or that was something that someone was able to obtain either without your phone or without your SIM card, correct?
MR. HIGGINS: That's correct.
MR. LALLY: May I approach just to retrieve, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: One moment, Your Honor?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Now, sir, going back to January 29th, pulling away from the residence on Fairview Road, you didn't see anything on the side of the road; is that correct?
MR. HIGGINS: Absolutely not, no.
MR. LALLY: And what is it that you would have done had you seen anything or had you seen Mr. O'Keefe on the side of the road on January 29th?
MR. HIGGINS: I've spent my whole life between being a firefighter, working in the profession that I work now, being a tactical medic. If I had seen John O'Keefe on the side of the road, I would have done something to make a difference.
MR. LALLY: I have no further questions.
MR. YANNETTI: May we approach, Your Honor?
JUDGE CANNONE: Yes. Jurors, feel free to stand up and stretch.
(Whereupon, there was a sidebar conference as follows:)
MR. YANNETTI: Your Honor, Mr. Lally talked about the entirety of the key log and keycard logs. I am seeking to introduce those now through this witness. Rather than do it before the jury, I figured I'd come to sidebar first.
JUDGE CANNONE: Do you object to them coming in now?
MR. LALLY: No.
MR. YANNETTI: The only other issue, Your Honor, is I don't have a clean copy. I have ones that are highlighted. I know Mr. Lally has a clean copy. We can get a clean copy. Can I offer them now and then have them be marked as an exhibit ata later point?
MR. LALLY: You can use my copy. That's fine.
MR. YANNETTI: Can I use your copy?
MR. LALLY: That's fine.
JUDGE CANNONE: Will you be questioning, as well, or are you just putting the records in?
MR. YANNETTI: Just a few questions.
JUDGE CANNONE: Okay. Because I was going to say, we can just do the records now if you want at sidebar.
MR. YANNETTI: That would be great.
JUDGE CANNONE: All right? Can I have your copy? That way there -- all right. So stay here. Does that make sense to both of you to do it this way instead of in front of the jury?
MR. LALLY: It makes no difference.
MR. YANNETTI: I think we can acknowledge that they've been introduced but that's it.
JUDGE CANNONE: All right.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: Madam Court Reporter, if you would please mark this by agreement as the next exhibit.
(Whereupon, keycard logs were entered and marked Exhibit No. 105 in Evidence.)
COURT REPORTER: Exhibit 105, Your Honor.
RECROSS-EXAMINATION BY MR. YANNETTI:
MR. YANNETTI: Sir, you testified that a prime motivator of you to get rid of your phone was a July 22nd call from a target of an investigation that you were working on?
MR. HIGGINS: I never said it was a prime motivator.
MR. YANNETTI: Was it a prime motivator?
MR. HIGGINS: No. What I testified to was the phone number was what I was concerned about primarily.
MR. YANNETTI: Right.
MR. HIGGINS: It didn't have anything to do with the phone.
MR. YANNETTI: Okay. You did not change your phone number on July 22nd, correct?
MR. HIGGINS: July of 2022? Is that what you mean?
MR. YANNETTI: The date that you received a call supposedly from a target of an investigation you were working on was July 22nd of which year?
MR. HIGGINS: So I believe it was July 25th of 2022.
MR. YANNETTI: July 25th?
MR. HIGGINS: I was so concerned that I reported it to my supervisor.
MR. YANNETTI: Right. But you did not change your phone number after that for quite a while, correct?
MR. HIGGINS: I believe it was September.
MR. YANNETTI: So for those months, you kept the same phone number and kept the same phone, correct?
MR. HIGGINS: I did.
MR. YANNETTI: And September happened to be the month that you received the preservation order from this Court, correct?
MR. HIGGINS: September of '22, yes.
MR. YANNETTI: Now, with regard to the text exchanges that you had with Karen Read, you testified that you were embarrassed about them?
MR. HIGGINS: I wasn't proud of them.
MR. YANNETTI: Right. I think your word was embarrassed, correct?
MR. HIGGINS: I can agree to that. That's fair.
MR. YANNETTI: Well, you already testified to that, right?
MR. HIGGINS: I believe --
MR. YANNETTI: About five minutes ago?
MR. HIGGINS: It might have been a word I used, yes.
MR. YANNETTI: And you also explained that you would keep things like that to yourself, correct?
MR. HIGGINS: That could be something, yes.
MR. YANNETTI: However, you would also agree with me that while they were going on, you told your boss about that text exchange, correct?
MR. HIGGINS: Well, I told her about the kiss.
MR. YANNETTI: Do you deny telling your boss about the texting that you were doing with Karen Read?
MR. HIGGINS: I don't know if I specifically recall that, no.
MR. YANNETTI: But you don't deny it, sir, correct?
MR. HIGGINS: It's possible that I told her about that. I'm not going to deny it.
MR. YANNETTI: All right. And, in any case, those text exchanges were preserved. You preserved those before disposing of your phone, correct?
MR. HIGGINS: Correct.
MR. YANNETTI: And, with regard to the other text exchanges that you did not preserve with the Alberts, including Brian Albert, are you familiar with the term "consciousness of guilt," Mr. Higgins?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: The objection is sustained.
MR. YANNETTI: Your Honor, may I have a moment?
JUDGE CANNONE: Yes.
BY MR. YANNETTI:
MR. YANNETTI: Just one more thing. With regard to the date that you changed phone numbers on your phone, you'd agree with me that was September 29th of 2022?
MR. HIGGINS: When I actually changed the phone number?
MR. YANNETTI: That's what I just asked.
MR. HIGGINS: Yes. I also got a new phone. Yes.
MR. YANNETTI: Okay. September 29th of 2022, you changed your phone number and got a new phone and then September 30th, the next day, you were served with the preservation order, correct?
MR. HIGGINS: I got the preservation order on the 30th. That's correct.
MR. YANNETTI: Nothing further.
JUDGE CANNONE: Okay, Mr. Higgins. You are all set, sir.
MR. HIGGINS: Thank you, Your Honor.