February 11, 2016.
Complaint received and sworn to in the Newburyport Division
of the District Court Department on May 30, 2013.
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
Kafker, C.J., Rubin, & Agnes, JJ.
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,
and also of disturbing the peace. 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. We reverse.
The events of May 29.
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
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-
arty testified that he and two other officers subdued the
defendant and " dragged him into his cell."
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
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. 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
presented at trial, you may infer that the potential ...
evidence would have been unfavorable to the
judge denied the request and the defendant objected.
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."
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
New trial motion.
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 ...