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Commonwealth v. Connolly

Appeals Court of Massachusetts, Middlesex

May 25, 2017


          Heard: December 14, 2016.

         Complaint received and sworn to in the Maiden Division of the District Court Department on August 19, 2014.

         The case was tried before Emily A. Karstetter, J.

          Justin J. Patch for the defendant.

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

          Present: Wolohojian, Milkey, & Shin, JJ.

          SHIN, J.

         The 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[1] 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.

         We 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.


         There 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 battery.[2]

         Prior 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, [3] 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."

         Initially, 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.

         The 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."

         About a 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 down."[4]

         That 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 ...

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