Heard: December 14, 2016.
received and sworn to in the Maiden Division of the District
Court Department on August 19, 2014.
case was tried before Emily A. Karstetter, J.
J. Patch for the defendant.
Catherine Sullivan, Assistant District Attorney, for the
Present: Wolohojian, Milkey, & Shin, JJ.
defendant was convicted of assault and battery for pushing
someone in a hallway of an apartment building. While he
admitted that contact occurred, his defense was that it was
accidental. The case therefore turned on the details of the
interactions between the two individuals. At trial the
Commonwealth presented a single witness -- a police officer
who watched a video of surveillance footage that he said was
recorded from inside the building. Before the defense had an
opportunity to view the video, it was erased through no fault
of the Commonwealth. Over the defendant's objection, the
judge allowed the officer to testify as to his recollections
of what he saw on the video, including that, contrary to the
theory of the defense, it showed the defendant lifting both
arms and "shoving" the victim to the ground.
consider in this appeal (1) whether the requirement of
authentication pertaining to real evidence applies to the
lost video, and (2) whether, and in what circumstances, a
judge can admit a witness's lay opinion identifying a
person on a video, where the video is not available for the
jury to view. With respect to the first question, we conclude
that, before the officer's testimony could be admitted,
the Commonwealth had to lay a foundation establishing that
the lost video was what the officer claimed it to be, i.e., a
genuine recording of the encounter that occurred between the
defendant and the victim. With respect to the second
question, while we reject the defendant's contention that
the unavailability of the video required automatic exclusion
of the officer's identification testimony, we conclude
that the Commonwealth had to lay sufficient foundational
facts to enable the jury to make their own findings about the
accuracy and reliability of the officer's
identifications. The Commonwealth did not meet either of
these requirements. The admission of the officer's
testimony was therefore an abuse of discretion, and, because
the Commonwealth's case rested on that testimony, the
error was prejudicial. Accordingly, we vacate the conviction.
is no dispute that some sort of incident occurred between the
defendant and the victim, Carol White, on July 1, 2014, at an
apartment building in Everett. As a result of that incident,
the defendant was charged in August of 2014 with assault and
to trial, which occurred in July of 2015, the defendant moved
to prevent the Commonwealth's sole witness, Everett
police Officer Paul Giardina, from testifying as to his
observations of the missing video. The defendant argued,
among other things,  that his attorney would have no effective
way of cross-examining the officer without having seen the
video himself, that the officer's testimony would be
hearsay and overly prejudicial, that the video was not
properly authenticated, and that there were "issues of
identification." In response the prosecutor asserted
that the officer could properly testify as to the contents of
the video because it never came within the Commonwealth's
custody and control; according to the prosecutor, the
management of the apartment building had accidentally erased
the video in the course of trying to make a copy. The
defendant agreed that there was no evidence of "any
wrongdoing on the part of the Commonwealth with respect to
the destruction of the evidence."
the judge expressed concerns about "fundamental
fairness" to the defendant, stating that "at the
very least, he should have been able to view [the video]
before being expected to cross-examine the officer about its
content." As the judge reasoned, "We don't know
the quality of the video. We don't know whether -- well,
I assume there would be some testimony, perhaps, about
whether it was in black and white or in color; whether it was
from a significant distance, and . . . whether there may have
been other cameras involved . . . ." But the judge then
conveyed uncertainty as to whether these concerns
"render[ed] [the officer's testimony] completely
inadmissible under the law" or whether they "[went]
to the weight of the evidence." Ultimately, she reserved
ruling on the motion, indicating that she would determine the
admissibility of the officer's testimony at trial.
defendant invoked his right not to testify at trial and
called no witnesses. Thus, the sole witness was Officer
Giardina, who testified as follows. At approximately 10:10
P..M. on July 1, 2014, Officer Giardina was dispatched to an
apartment building at 19 Hancock Street in Everett, where he
spoke with both White and the defendant. He observed that
White was "elderly, " was "having a tough time
walking around, " and "appeared a little
confused." The defendant told the officer that he had
been in the community bathroom with his girl friend and
accidentally bumped White over when he opened the bathroom
door. The officer did not arrest the defendant because
"it appeared that it was an accident."
month later, on August 7, 2014, Officer Giardina returned to
the apartment building and spoke again with the defendant.
This time, the defendant admitted that he and White "had
a small argument" before going their separate ways. The
defendant also admitted that he made contact with White
twice: first, when he knocked her over with the bathroom
door, and second, when he bumped into her in the hallway.
According to the defendant's description of this second
incident, after he "walked down the hallway and came
back, " he "was turned around looking away from
[White]" when "she came up behind him"; at
that point he "quickly turned around, "
"didn't realize she was there, " and "just
threw his hands up to stop her and knocked her
same day, Officer Giardina met with Mitch Crouse, who he
"believe[d] . . . was one of the building
supervisors." The officer testified, over the
defendant's objection, that Crouse showed him "video
of the incident." He then described the contents of the
video, again over the defendant's objection, as follows:
"In the video you can see Mrs. White going to the
bathroom door. The door swings open. You see Mrs. White go
into the bathroom and then she comes out from the bathroom
and you also see Mr. Connolly come out from the bathroom.
They go their separate ways, one down one end of the hallway
[inaudible word]. Mr. Connolly was walking away from the
bathroom. Mrs. White was still by the bathroom door.
There's no audio on the video but it appears that
they're having some ...