Commonwealth v. Connolly

78 N.E.3d 116

COMMONWEALTH

v.David A. CONNOLLY.

No. 16-P-107

Appeals Court of Massachusetts, Middlesex..

Argued December 14, 2016

Decided May 25, 2017

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 footage¹ 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.

Background . 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 sort of shouting match. And then Mr. Connolly walks back towards Mrs. White and shoves her to the ground."

Responding to follow-up questions from the prosecutor, Officer Giardina stated that the defendant walked "[m]aybe 20, 30 feet" down the hall before coming back toward White and using "[t]wo hands" to "shov[e] her." Later, on redirect examination, the officer reiterated that he saw the defendant "walk [ ] up to [White] and lift[ ] his arms and push[ ] her."

On cross-examination defense counsel asked Officer Giardina a series of questions about the camera angles and quality of the video, eliciting testimony that the video was "black and white" and facing "straight down the hallway." The remainder of defense counsel's questions sought mostly to test the accuracy of the officer's recollection of what he saw on the video. In response to that line of questioning, the officer admitted that he could not remember if the defendant had his head up or down as he was walking down the hallway. He also admitted that the defendant was walking "at a regular pace" and that there was no altercation or apparent conversation between him and White after she fell to the ground.

During her closing argument, the prosecutor emphasized the testimony elicited on cross-examination about the quality of the video, asserting that Officer Giardina "had a clear view straight down the hallway of these two individuals, Mr. Connolly, the defendant, and Miss White." The prosecutor also urged the jury to reject the defense's theory that the contact was accidental and credit Officer Giardina's testimony that the video showed the defendant "throw[ing] up his arms and push[ing] White, knocking her down." The following passage illustrates the nature of the prosecutor's argument:

"[W]hat you heard from Officer Giardina is that the defendant lifted his hands and he pushed Miss White, knocking her to the ground. And what was the viewpoint on that? It was straight down the hallway. Yes, it was in black and white; but that doesn't mean you can't see somebody commit an act. Officer Giardina had talked to Miss White. Officer Giardina had talked to Mr. Connolly. He could recognize these individuals even if the video was in black and white. Do those details really matter? That's up to you to decide based on what you heard from Officer Giardina."

After less than one-half hour of deliberations, the jury found the defendant guilty of assault and battery. At sentencing defense counsel again voiced his objection to the officer's testimony, asserting that the "whole case was based upon the evidence that came in ... as observations from a video tape," and he was "significantly limited in [his] cross-examining ... because [he] ha[d] not seen that video." The judge ultimately sentenced the defendant to six months of probation.

Discussion . To put our analysis in context, we note at the outset what is not at issue in this appeal. First, this case does not implicate the best evidence rule, which provides that "[a]n original writing or record is required in order to prove its content." Mass. G. Evid. § 1002 (2017). See Commonwealth v. DeJesus , 87 Mass.App.Ct. 198, 200, 26 N.E.3d 1134 (2015). This is so, in part, because the...