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Commonwealth v. Heath

Appeals Court of Massachusetts, Essex

April 26, 2016

Commonwealth
v.
Carroll N. Heath. [1]

         Argued February 11, 2016.

          Complaint received and sworn to in the Newburyport Division of the District Court Department on May 30, 2013.

         The case was tried before Allen G. Swan, J., and a motion for a new trial was heard by him.

          Christine DeBernardis for the defendant.

          Catherine P. Sullivan, Assistant District Attorney, for the Commonwealth.

         Present: Kafker, C.J., Rubin, & Agnes, JJ.

          OPINION

          Kafker, C.J.

          [50 N.E.3d 197] The defendant, Carroll N. Heath, was convicted of assault and battery on a police officer pursuant to G. L. c. 265, § 13D,

Page 329

and also of disturbing the peace.[2] He appeals the judge's denial of his motion for a new trial on the assault and battery charge, claiming that he was denied due process of law by the Commonwealth's failure to preserve a video recording of incidents in the booking room of the Haverhill police station [50 N.E.3d 198] that led to the assault and battery charge.[3] We reverse.

         1. Background.

         a. The events of May 29.

         On May 29, 2013, the defendant was arrested for disturbing the peace. He had entered the emergency room at Merrimac Valley Hospital in Haverhill, demanded a sandwich, a shower, and that someone do his laundry, and let loose a tirade of racist, sexist, and other offensive comments at medical personnel when they told him that he must first see a physician before they could provide him with food and that they " did not have a shower in the emergency department." Haverhill police Officer Dennis Moriarty, who was called to the hospital, tried to calm the defendant and escorted him from the hospital building while the defendant verbally threatened to hack him to pieces with a machete. The defendant then proceeded to a neighboring property, and Moriarty was called to that location by a resident when the defendant refused to leave. Moriarty then arrested the defendant and took him to the police station for booking.

         Officer Moriarty testified at trial that because the defendant " needs crutches to walk ... [and] has no use of his legs," Moriarty did not place the defendant in handcuffs at the time of the arrest. Moriarty testified that he asked the defendant during booking to remove various articles from his person, including a baseball cap, socks, and shoes, and Moriarty informed the defendant that if he did not remove the items voluntarily, Moriarty would do it himself. Moriarty testified that when the defendant refused to remove the aforementioned articles, Moriarty removed the defendant's cap. The defendant then forcefully struck Moriarty in the chest. Moriarty testified that he was wearing a " bullet resistant trauma vest[ ]" at the time, and the punch left " no marks" and " didn't require any type of medical attention." Mori-

Page 330

arty testified that he and two other officers subdued the defendant and " dragged him into his cell."

         During Officer Moriarty's testimony, he was asked about video recording in the booking room. On direct examination, he testified that there was a " means of recording" what was going on in the booking room and that he did not know " who [was] ... in charge of maintaining" that recording device. He also testified that he was not permitted to view the video recording nor did he have access to it. On cross-examination, Moriarty testified that " there were security cameras there that essentially captured the entire booking process." He also testified on cross-examination that he did not " attempt to talk to any other officers, superiors or other supervisors ... to obtain that booking video."

         During the charge conference, the defendant requested an instruction on missing evidence, i.e., the booking video, which, he informed the judge, had been requested and had been the subject of a motion to preserve. It was clear at this time that the judge, the prosecutor, and trial counsel understood that the video had not been preserved.[4] The defendant proposed that the judge instruct the jury as follows:

[50 N.E.3d 199] " [I]f the Commonwealth, ... could have gathered and produced particular evidence that would have been helpful to your deliberations in this matter, it is logical to assume that the government would naturally offer that evidence at trial.
" If then, without explanation, ... that evidence is not

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presented at trial, you may infer that the potential ... evidence would have been unfavorable to the Commonwealth."

         The judge denied the request and the defendant objected.

         In closing, trial counsel conceded the disturbing the peace charge but contested the assault and battery, arguing:

" [Y]ou heard that the whole booking process is recorded. There's video cameras that record this. Officer Moriarty knows that these booking videos can be used as evidence... . But there's no booking video. We only know what happened from Officer Moriarty's testimony. We don't have a booking video to either corroborate his story or dispel it. But don't you find it a little problematic if the Commonwealth is trying to get a conviction and they have a booking video that backs his story up? You should be watching it right now. You should have already watched it. But you don't have it here today."

         The prosecutor ended his closing by addressing the booking video:

" I'd simply ask you not [to] speculate as the Judge will instruct you about what was in the video or why there's no video or anything like that. And simply confine yourself to the evidence before you. And the evidence before you is the officer told you he didn't know how to get the video... . Beyond that, there's no evidence before you."

         b. New trial motion.

         The defendant filed a motion for new trial, contending that he was denied due process of law by the Commonwealth's failure to preserve the booking video. The motion was supported by affidavits from the defendant and his pretrial counsel. The motion judge (who ...


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