5.Anthony Joseph Zimmerman — Direct/Cross
215 linesANTHONY JOSEPH ZIMMERMAN: Yes, I do, Judge.
ANTHONY JOSEPH ZIMMERMAN, called as a witness herein, having been first duly sworn, was examined and testified as follows:
THE COURT: Would you please state your full name and spell your last name for the record.
ANTHONY JOSEPH ZIMMERMAN: Anthony Joseph Zimmerman, last name Z-i-m-m-e-r-m-a-n.
THE COURT: Mr. Kratz, you may proceed.
MR. KRATZ: Thank you.
DIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: Mr. Zimmerman, please do your best to speak up nice and loudly and right into the phone so we can all hear you, sir. How is it that you are employed?
ANTHONY JOSEPH ZIMMERMAN: I am employed with Cingular Wireless.
MR. KRATZ: And how are you employed, sir?
ANTHONY JOSEPH ZIMMERMAN: You mean my job title?
MR. KRATZ: Your job title, yes.
ANTHONY JOSEPH ZIMMERMAN: I'm a network engineer.
MR. KRATZ: Are you currently working in any specific departments within Cingular.
ANTHONY JOSEPH ZIMMERMAN: The department I work in, I am responsible for technical support on our voice --
(Court reporter couldn't hear.)
MR. KRATZ: On your voice mail platform?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. KRATZ: There were some questions earlier in this trial, actually a couple of weeks ago, regarding some voice mails that had been received; were you asked to appear today, either in person or by phone, to clear up some of those questions about voice mails?
MR. KRATZ: First of all, Mr. Zimmerman, how long have you been employed in that capacity?
ANTHONY JOSEPH ZIMMERMAN: In this capacity, I have been working for eight years.
MR. KRATZ: And what are your general duties as in the voice mail platform or as a network engineer?
ANTHONY JOSEPH ZIMMERMAN: Primarily responsible for ensuring our voice mail systems are running without errors and providing voice mail service to our customers.
MR. KRATZ: As part of that occupation, Mr. Zimmerman, are you called upon from time to time to review records regularly kept by Cingular?
ANTHONY JOSEPH ZIMMERMAN: Yes, I am.
MR. KRATZ: And in reviewing those records, specifically some of those records as they relate to voice mail, are you able to offer either opinions or explanations about what some of the terminology means in those records?
ANTHONY JOSEPH ZIMMERMAN: Yes, I am.
MR. KRATZ: Sometime prior to your testimony, Mr. Zimmerman, you were provided with a couple of exhibits that have already been introduced into evidence in this case. One is Exhibit No. 361 and one is Exhibit No. 372, do you have both of those exhibits in front of you at this time?
ANTHONY JOSEPH ZIMMERMAN: I have Exhibit 361 and I have -- I believe I have Exhibit 372; although, it's not marked as such.
MR. KRATZ: All right. We'll talk about 372 in just a minute. I'm going to have my colleague, Mr. Fallon, for the benefit of the jurors and everybody in the court, put up Exhibit No. 361. This is a Cingular document that has previously been referred to and, in fact -- and, in fact, was already received.
MR. KRATZ: And just for the record, Judge, as this is a document that includes telephone numbers, we would very much appreciate that the media not film at least this particular document.
THE COURT: I think the -- I don't think the camera is aimed at the screen. Is there a camera man back there? I guess it's really not aimed at the screen since there is nobody manning the camera. It doesn't seem to be aimed that way, so I think we'll be okay.
MR. KRATZ: (By Attorney Kratz)~ Mr. Zimmerman, this subscriber activity report, do you recognize this exhibit, 361?
ANTHONY JOSEPH ZIMMERMAN: Yes, I recognize it.
MR. KRATZ: All right. Now, as a network engineer in the technical support area, Mr. Zimmerman, have you been asked not only to review this particular report, but other reports that deal with the telephone -- or excuse me, the wireless usage of a young woman by the name of Teresa Halbach?
ANTHONY JOSEPH ZIMMERMAN: Yes, I have been.
MR. KRATZ: Let me first ask you, Mr. Zimmerman, after October 31st, 2005, at or about 2:27 -- excuse me, 2:41 p.m., have you been able to determine whether or not there was any what's called activity, regarding Ms Halbach's cellular account?
ANTHONY JOSEPH ZIMMERMAN: I have not been able to determine whether there was any activity on that account.
MR. KRATZ: All right. The question that I have of you, and I asked it in a negative way, so let me come right out and ask you, was there any activity in Ms Halbach's account after that time?
ANTHONY JOSEPH ZIMMERMAN: Not from the mobile itself, no, there was no activity.
MR. KRATZ: All right. Now, is there anyway, Mr. Zimmerman, from you, that is from technical support or as a network engineer, to do determine why that might be; in other words, although you can tell us that there was no activity, are you able, just by looking at records, to determine why a particular account may be inactive?
ANTHONY JOSEPH ZIMMERMAN: Because there was no billing activity taking place.
MR. KRATZ: All right. As an example, Mr. Zimmerman, if this particular telephone, the cellphone of Ms Halbach, had been used, even for something like checking a voice mail account, would that be an activity that you, through your review of the records, would have been able to see?
ANTHONY JOSEPH ZIMMERMAN: Yes, that's correct.
MR. KRATZ: And, again, after -- sometime after 2:20 -- excuse me, 2:21 p.m. -- excuse me, 2:41 p.m., on the 31st of October, it's your testimony that there was no such activity; is that correct?
ANTHONY JOSEPH ZIMMERMAN: That is correct.
MR. KRATZ: All right. Next, Mr. Zimmerman, like to clear up one last area and that is Exhibit No. 372. You said that you may not know it as such, or at least as a document that is marked as a exhibit, or a State's exhibit, but do you have in front of you a four page document which identifies various voice mails that, again, are specifically related to Teresa Halbach's account?
ANTHONY JOSEPH ZIMMERMAN: Yes, I have this document in front of me.
MR. KRATZ: And I would just ask you, as we discuss this, I would ask you to consider that four page document as Exhibit No. 372 if, in fact, we refer to it as such; are you able to do that for us?
ANTHONY JOSEPH ZIMMERMAN: Yes, I am.
MR. KRATZ: All right. Thank you.
MR. KRATZ: Mr. Fallon, if you would be so kind as to zoom into any of the messages; it doesn't make any difference to me.
MR. KRATZ: (By Attorney Kratz)~ Let's just look at message No. 2, the second message down, at least on our screen. Mr. Zimmerman, on page number one of that exhibit, do you see something called message number two?
ANTHONY JOSEPH ZIMMERMAN: Yes, I see it.
MR. KRATZ: Now, within that message, or within the details of that message, there is some jargon that is used that I would ask you to tell our jurors what it means. First of all, when something says received, do you see where -- where you see that the message or the voice mail was received?
ANTHONY JOSEPH ZIMMERMAN: Yes, I see that.
MR. KRATZ: Could you describe for the jurors, what does it mean to, at least on this document, that a voice mail was received?
ANTHONY JOSEPH ZIMMERMAN: That is the time and date stamp that the message was recorded into the voice mailbox and the voice mail system.
MR. KRATZ: When it says 11/2/2005, is that the date that a voice mail for Ms Halbach was actually received into her voice mailbox?
ANTHONY JOSEPH ZIMMERMAN: Yes, that's correct.
MR. KRATZ: And what does 14:28 mean?
ANTHONY JOSEPH ZIMMERMAN: That correlates to 2:28 p.m. in the afternoon.
MR. KRATZ: All right. Is there anything within that detail of that message, or, in fact, any of the 18 messages that we are going to see in Exhibit No. 372, that describes for you the time or date when that message may have been retrieved by somebody?
ANTHONY JOSEPH ZIMMERMAN: These is no such data in this report.
MR. KRATZ: Now, there are two other terms that I would ask you to identify for us. First of all, what is an unopened message?
ANTHONY JOSEPH ZIMMERMAN: It is simply a message that has not been saved. And one can draw the conclusion that it was either listened to or skipped while the playback was taking place.
MR. KRATZ: And once again, when a message is not saved, that is, whether it's been listened to or skipped, or not, does that tell us anything about when that message might have been retrieved or listened to?
ANTHONY JOSEPH ZIMMERMAN: No, that does not tell us anything about that.
MR. KRATZ: Ask Mr. Fallon to turn to page two, if he would, about two thirds of the way down the page.
MR. KRATZ: And, Mr. Zimmerman, I ask you to look at that as well. It appears to say number of unopened messages, eight; do you see that?
ANTHONY JOSEPH ZIMMERMAN: Yes, I see that.
MR. KRATZ: Can you describe for jury what that means?
ANTHONY JOSEPH ZIMMERMAN: That is the total count of messages that are marked unopened, that have not been saved in the mailbox.
MR. KRATZ: Now, other than unopened messages, there is something that is called an old message; is that correct?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. KRATZ: What is an old message?
ANTHONY JOSEPH ZIMMERMAN: And old message refers to a message that had been saved in the mailbox.
MR. KRATZ: If a message has been saved in the mailbox, are you able, as a network engineer in the technical support area, able to render an opinion as to whether that has physically been listened to?
ANTHONY JOSEPH ZIMMERMAN: It has. Yes, I can render an opinion that it has been listened to, at least partially and most likely entirely.
MR. KRATZ: All right. And is there a manual or some human component to that which requires that message to be saved?
ANTHONY JOSEPH ZIMMERMAN: Yes, there is, one must interact via the keys on their handset or telephone.
MR. KRATZ: I would ask Mr. Fallon to turn to the last page, that's page four of this exhibit. That's Exhibit No. 372.
MR. KRATZ: Ask you, also, Mr. Zimmerman, to look at that on page four, ask if you can tell us how many old messages was there that were related to Ms Halbach's voice mail?
ANTHONY JOSEPH ZIMMERMAN: There are 10.
MR. KRATZ: Of those 10 retrieved or saved messages, is there any way for your company, and for you, as it's representative and network engineer, to tell this jury when those messages may have been listened to?
ANTHONY JOSEPH ZIMMERMAN: I cannot determine when exactly these messages were listened to, no.
MR. KRATZ: Mr. Zimmerman, with a Cingular voice mail account, is it possible to retrieve or listen to a voice message remotely, that is, from a phone other than the cellphone for which that voice mail attaches to?
ANTHONY JOSEPH ZIMMERMAN: Yes, that is possible.
MR. KRATZ: Could you tell the jury how that works, please?
ANTHONY JOSEPH ZIMMERMAN: Well, someone can call either the mobile number itself from, say a land line telephone, as the voice message begins playing the greeting, one can interrupt that greeting with a key press and enter that mailbox's password and gain full access to the mailbox just as if they were the subscriber.
MR. KRATZ: So if --
ANTHONY JOSEPH ZIMMERMAN: I'm sorry.
MR. KRATZ: Go ahead.
ANTHONY JOSEPH ZIMMERMAN: Besides calling the mobile number itself, they can also call the voice mail system number, there is a phone number associated with the voice mail system, and that will simply place them into a generic greeting, in which they can enter the mobile 10 digit number to access the mailbox that way.
MR. KRATZ: So if I understand correctly, if somebody wanted to access Ms Halbach's voice messages, remotely that is, using a phone other than Ms police Halbach's cellphone, they could do so either by calling her phone number and putting in a pass word; is that right?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. KRATZ: Or they could call the Cingular system itself and enter a -- what would be a 10 digit number, as well as the password number; is that correct?
ANTHONY JOSEPH ZIMMERMAN: That is correct.
MR. KRATZ: And, once again, if somebody knew the password, if somebody knew or figured out a password for this particular cellphone account, it wouldn't necessarily have to be the owner or holder of that account to retrieve those; is that fair?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. KRATZ: I think that clears up those two areas and those few questions. Thank you, very much, Mr. Zimmerman, and I will pass the witness, Judge.
THE COURT: All right. Mr. Zimmerman, just a second, I want to ask, are the members of the jury able to hear okay? I had maintenance turn the fan off; hopefully we won't have trouble breathing, but I think for the duration of this witness' testimony, it works better, Mr. Buting.
MR. BUTING: Yes, thank you, Judge.
CROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Mr. Zimmerman, can you hear me?
ANTHONY JOSEPH ZIMMERMAN: Yes, I can.
MR. BUTING: Good afternoon, this is Jerome Buting. I'm one of the defense attorneys for Mr. Avery, who's on trial here today, okay?
MR. BUTING: If you could explain for me a couple of things, I would appreciate it. First of all, when one calls into a voice mail account like this one --
MR. BUTING: Mr. Fallon, could you put that last page back up again, please?
MR. BUTING: (By Attorney Buting)~ When one calls into the voice mail and you get a message that says you have, I don't know, 18 messages holding; is that how it works?
ANTHONY JOSEPH ZIMMERMAN: It usually plays the number of messages you have that are new.
MR. BUTING: Okay. So the very first messages that come on are the most recent messages; is that right?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. BUTING: And if somebody hasn't checked their phone for a while and 18 messages have built up into the system, when you start listening to it, the first time, does it play the most recent messages first and go in reverse order, chronologically?
ANTHONY JOSEPH ZIMMERMAN: It will play the oldest message first.
MR. BUTING: Okay. So it will start off with number one and go, chronologically, up to 18; is that right?
MR. BUTING: So, in turning to Exhibit No. 372 for a moment, to page two -- We're just putting it up on the screen, bear with us. Okay. So on page two, about two thirds of the way down, it says incoming old messages; do you see that?
ANTHONY JOSEPH ZIMMERMAN: Yes, I do.
MR. BUTING: And the date of that is October 31 of 2005, at 1:54 p.m., right?
ANTHONY JOSEPH ZIMMERMAN: The date for that particular message, that's just below the heading, yes, that's correct.
MR. BUTING: So if one was to call in after all of these 18 messages had built up, into the account, this would be the first one that would play; is that right?
ANTHONY JOSEPH ZIMMERMAN: That's not totally correct, no. Would you like me to expand on that?
MR. BUTING: Sure.
ANTHONY JOSEPH ZIMMERMAN: If there are new messages in the account, those new messages will play in chronological order, starting with the oldest message. Now, if there are no new messages in the mailbox, then it will begin playing the skipped or unopened messages first.
MR. BUTING: From the oldest to the most recent?
ANTHONY JOSEPH ZIMMERMAN: Yes, that's correct.
MR. BUTING: Maybe you need to define for us what you mean by new messages, if there's new messages received? What does that mean?
ANTHONY JOSEPH ZIMMERMAN: A new message would be one that has not been listened to at all.
MR. BUTING: Okay. So, taking this account and these records, if all 18 of these messages built up into the account, without any of them having been listened to, when one first called to access that account, would it start at this message that we're looking at on page 2 that says October 31, of 2005, at 1:54 p.m.?
ANTHONY JOSEPH ZIMMERMAN: Yes, I believe that's the oldest message in the mailbox, so, yes, that would be accurate.
MR. BUTING: Okay. And, then, from this record, you can tell that someone did listen to that message, right?
ANTHONY JOSEPH ZIMMERMAN: That's correct, yes.
MR. BUTING: And as well as, if you follow with me on this document, message two, message three, turning the page to page three of the document, all of those up to the last one on page four --
MR. BUTING: Can you turn to that one, Dean?
MR. BUTING: And, sir, if you would turn to the last page, this is the last one, message number 10, that appears to be categorized as an old message; is that right?
ANTHONY JOSEPH ZIMMERMAN: That's right.
MR. BUTING: And the date and time of this one is November 2nd, 2005, at 8:05 a.m.; is that right?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. BUTING: So, from this record, then, does it appear to you that 10 messages were opened and listened to, or at least partially listened to, as you said, between October 31st, that first one we looked at, and this 10th one on November 2nd, at 8:05?
ANTHONY JOSEPH ZIMMERMAN: I can't determine when they were listened to, or saved, based on these records.
MR. BUTING: I understand. I'm not asking you that. What I'm asking you is, is it clear from these records, though, that those first 10 messages, in chronological order, were opened and listened to?
ANTHONY JOSEPH ZIMMERMAN: Yes. Yes, that is apparent.
MR. BUTING: Okay. And, then, turning to page one, again, of this exhibit, to message number one, on this exhibit for the next -- on page one and two, there's a series of -- a sequence of eight messages that appear to be under this category that says incoming unopened messages; do you see that?
ANTHONY JOSEPH ZIMMERMAN: Yes, I see that.
MR. BUTING: Do I understand, then, that incoming unopened means they have not been listened to?
ANTHONY JOSEPH ZIMMERMAN: No. No, they are actually marked in the system as having been listened to, but not saved.
MR. BUTING: And how would that be? How do you listen to it and not save it?
ANTHONY JOSEPH ZIMMERMAN: And you simply don't interact with the handset. You don't interact. You don't press any keys, the save key, you don't press the save key, and it will stay in this date. You can press say, for instance, a pound key, to skip the message, but listen to the next one, but as long as you don't save them, they will stay in this date, after listening to them.
MR. BUTING: Okay. So when it says unopened messages, it doesn't necessarily mean that they weren't listened to at all?
ANTHONY JOSEPH ZIMMERMAN: No, it simply means that they have not been saved.
MR. BUTING: Okay. And can you tell that they have been listened to?
ANTHONY JOSEPH ZIMMERMAN: At least partially. They have been marked as listened to in the system, but if one message was to begin playing and the skip key was pressed, that would also mark it as having been listened to, in the system.
MR. BUTING: Okay. So how does this differ from the opened messages?
ANTHONY JOSEPH ZIMMERMAN: The opened messages have been saved. The saved key has been pressed, after listening to the message in its entirety, or at least partially, which marks the message as saved, also known as hold.
MR. BUTING: Okay.
(Court reporter couldn't hear.)
MR. BUTING: Hold. And I'm trying to get clear the difference here then. So these eight messages that are marked as incoming unopened messages, it's your testimony that they -- that someone did open them and listen to them, at least partially, and then either let them play all the way through and not interact and save, or push some button that skips to the next before they're completed?
ANTHONY JOSEPH ZIMMERMAN: Yes, that is my testimony.
MR. BUTING: Okay. And when you do that, they are automatically saved as incoming, unopened messages.
ANTHONY JOSEPH ZIMMERMAN: Yes, they stay in the mailbox as -- as incoming unopened messages.
MR. BUTING: Okay. And, then, when one listens to them, and at the end of each message, chooses to push a button to save them, that's when they get reclassified as incoming opened messages; do I have that right?
ANTHONY JOSEPH ZIMMERMAN: They are actually classified as incoming old messages.
MR. BUTING: All right. Then, from this document, can we determine, then, that the -- in chronological order, the first 10 messages were opened and saved, each one, manually, by pushing a button, beginning on October 31st; is that right?
MR. BUTING: But the next eight were listened to or skipped, but not saved.
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. BUTING: Okay. Thank you, very much. That's very helpful. Can you tell from this -- from these records, whether or not someone listened to any voice mails and then erased them?
ANTHONY JOSEPH ZIMMERMAN: I cannot tell from this record that that has been done, no.
MR. BUTING: And can you tell, from her account, what the capacity for messages would be before you get a message that says mailbox is full?
ANTHONY JOSEPH ZIMMERMAN: There is a way to tell that on an active voice mailbox via a different report. This report does not show that information.
MR. BUTING: Okay. From your experience, your years in the business, if you look at these -- By the way, let me go back for a second. Is the capacity determined by, like the length of the call, or the number of the calls?
ANTHONY JOSEPH ZIMMERMAN: It is considered -- There are limitations placed on both the length of each message and, also, the number of messages that can be stored in the mailbox.
MR. BUTING: Okay. And the length of these messages are also indicated on this report, right? Each message has a -- third line down from the top says audio, colon, and then a number with parentheses (SEC), like seconds?
ANTHONY JOSEPH ZIMMERMAN: Yes, that's correct.
MR. BUTING: So, for instance, on page number one, message number one, under unopened, where it says audio, 69 seconds, that means it was a 69 second phone call?
ANTHONY JOSEPH ZIMMERMAN: That's correct.
MR. BUTING: Okay. Looking, if you would, for a moment, then, at the length of all of these calls combined together, with a number being 18, do you have an opinion about whether or not this would fill up the capacity of this subscriber's voice mailbox, these messages?
ANTHONY JOSEPH ZIMMERMAN: This appears that it would not have filled up the full capacity of the mailbox.
MR. BUTING: All right. And, so, if one was getting a message on November 3rd, when calling this particular phone number, that said mailbox full, would that indicate to you that perhaps some messages that we now -- or that some messages had been erased that are not reflected on this Exhibit No. 372?
ANTHONY JOSEPH ZIMMERMAN: Well, if somebody heard that recording, that the mailbox was full, on November 3rd, then I would say, yes, at least one or more messages had to have been removed before the new message at the stop of this document was received.
MR. BUTING: Okay. And there's no way to tell what date or time in this sequence that message or messages might have been, that was erased?
ANTHONY JOSEPH ZIMMERMAN: There is no way to determine that from this record, no.
MR. BUTING: Okay. And is there also no way to tell what time, I assume, if someone called in, what time it would have been erased?
ANTHONY JOSEPH ZIMMERMAN: Not from this record, no.
MR. BUTING: I have just got a couple of other questions that I don't know that you can answer or not, but they have to do with trying to access one's account, such as this one, online; are you familiar with that process at all?
ANTHONY JOSEPH ZIMMERMAN: From the internet?
MR. BUTING: Correct. From your cingularwireless.com?
ANTHONY JOSEPH ZIMMERMAN: From our company website, I'm not aware of a function we have that allows that.
MR. BUTING: Maybe it's not the company website, but are you aware that customers can go online and access their accounts and find out, you know, the call activity, what their last phone calls were?
ANTHONY JOSEPH ZIMMERMAN: Yes, I am familiar with that feature.
MR. BUTING: Okay. And to do that, does one have to have a user name and a password set up?
ANTHONY JOSEPH ZIMMERMAN: Yeah. In order to access your billing account records, yes.
MR. BUTING: But if you have that information, a user name and a password, you can then access the billing records, which would give you, for instance, the most recent call activity on that account; is that right?
ANTHONY JOSEPH ZIMMERMAN: Yes, that's correct.
MR. BUTING: If you don't have -- If you have the password, but you don't have the user name, you are not going to be able to access that account?
ANTHONY JOSEPH ZIMMERMAN: If you are unable to correctly put in the user name, yes, that's correct, you will not be able to access it.
MR. BUTING: Okay. So you have to know both the user name and the password to be able to access the account?
MR. BUTING: And the password for that account, online, may or may not be the same as the password one enters to access their voice mail account?
ANTHONY JOSEPH ZIMMERMAN: I believe that's true; however, I'm not 100 percent familiar with our online account security --
MR. BUTING: Okay.
ANTHONY JOSEPH ZIMMERMAN: -- requirement.
MR. BUTING: All right. So, you don't know, for instance, whether an online password requires numbers and letters, whereas the phone, probably just numbers?
ANTHONY JOSEPH ZIMMERMAN: That's correct, yes.
MR. BUTING: Okay.
MR. BUTING: All right. Thank you very much, sir. That's all I have.
THE COURT: Mr. Kratz, any redirect?
MR. KRATZ: No. Mr. Zimmerman has been very helpful. Thank you, that's all the questions I have.
THE COURT: Okay. Thank you, Mr. Zimmerman, you may hang up at this time.
ANTHONY JOSEPH ZIMMERMAN: All right. Thank you.
MR. BUTING: Thank you, sir.
MR. KRATZ: One very brief witness, Judge. It's very well right at this time, if I could call him.
THE COURT: All right. We'll take one more witness, then, before the break.