Opinion
20-P-1024
07-14-2022
COMMONWEALTH v. JEAN BAZILE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted, following a jury-waived trial, of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b). In this appeal, the defendant argues that (1) a photograph of the defendant and a cell phone video recording of security camera footage should not have been admitted in evidence because they were insufficiently authenticated; (2) two witnesses should not have been allowed to offer lay opinion testimony that a photograph depicted the defendant; (3) the prosecutor made improper statements in his closing argument that relied on racial stereotypes; and (4) the evidence was insufficient to sustain his conviction. We affirm.
1. The photograph and the cell phone video recording.
A Brockton police officer testified that, on the night of the offense, he responded to a radio call about a fight at a liquor store; when he arrived on the scene, the officer spoke briefly with the victim and then went inside the liquor store to talk to the employees. The employees provided the officer with a photograph that was in a folder with what appeared to be resume bearing the defendant's name and address. The officer took the photograph to his cruiser and searched for defendant's name and address on his mobile data terminal; that search returned a record for the defendant from the registry motor vehicles, which also included a photograph. The officer then returned to the liquor store to make a copy of footage from the store's security camera that showed the offense taking place. The officer made the copy by using his cell phone to make a video recording of the security camera footage as it was replayed on a video monitor. Both the photograph and the cell phone video recording were admitted in evidence without objection by the defendant.
In general, "all relevant evidence is admissible unless within an exclusionary rule. Evidence is relevant if it renders [a] desired inference more probable than it would be without the evidence." Poirier v. Plymouth, 374 Mass. 206, 210 (1978). "Authentication represents a special aspect of relevancy in that evidence cannot have a tendency to make the existence of a disputed fact more or less likely if the evidence is not that which its proponent claims." Commonwealth v. Meola, 95 Mass.App.Ct. 303, 307 (2019), quoting United States v. Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). "With regard to the authentication of evidence, the judge has a gatekeeper role." Id. at 308, citing Mass. G. Evid. § 104(b) (2019). This role consists of making a determination whether "there is evidence sufficient, if believed, to convince the [fact finder] by a preponderance of the evidence that the item in question is what the proponent claims it to be. If so, the evidence should be admitted, if it is otherwise admissible." Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), quoting M.S. Brodin & M.
Avery, Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). As to the photograph, the defendant argues that it was not properly authenticated because no witness testified that it was a fair and accurate representation of the defendant at any particular point in time. "Photographs usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw. But authenticity also can be established circumstantially by 'evidence sufficient support a finding that the matter in question is what proponent claims.'" (Citations omitted.) Commonwealth Figueroa, 56 Mass.App.Ct. 641, 646 (2002), quoting Proposed Mass. R. Evid. 901(a). Here, the Commonwealth did not offer the photograph to show that it depicted the defendant; rather, it was merely offered as the photograph store employees gave to the officer when he responded to the scene of the crime. The officer's testimony on this point, which the judge was entitled to credit, see Commonwealth v. Ware, 75 Mass.App.Ct. 220, 231 (2009), was sufficient to authenticate the photograph for this purpose. See Figueroa, supra at 646-647. The photograph was relevant because it had been stored in a folder with the defendant's name and address, it showed that the defendant had been to the liquor store where the victim was known to be a regular customer, and it showed that the defendant owned a mottled yellow hooded sweatshirt that appeared to be the same as the distinctive yellow sweatshirt worn by the assailant in the security camera footage. Since the officer's testimony established the authenticity of the photograph and the photograph was relevant, there was no abuse of discretion in its admission. See Purdy, 459 Mass. at 447.
The defendant also argues that the officer's cell phone video recording of footage from the liquor store's security camera should not have been admitted in evidence because it was not properly authenticated. This argument is unpersuasive for largely the same reasons as those just discussed in relation to the photograph. Security camera video footage is generally authenticated by either "having an eyewitness testify that the video is a fair and accurate representation of what he saw on the day in question, or having someone testify about the surveillance procedures and the methods used to store and reproduce the video material." Commonwealth v. Connolly, 91 Mass.App.Ct. 580, 586 (2017). Here, the officer provided detailed testimony about how he held his cell phone with its camera facing the liquor store's video monitor and made a recording of the security camera footage on his cell phone as the footage was played back on the monitor. The officer explained that reflections occasionally visible in the cell phone video recording were the reflections in the monitor, and that he made a recording of the footage on his cell phone rather than obtain a digital copy of the footage itself because of the "technical limitations" of the liquor store's video surveillance system. The cell phone video recording was highly relevant because it clearly showed the assault taking place, and any concerns about the completeness of the recording, or the manner in which the officer made it, "[went] to its weight and not its admissibility." Commonwealth v. Rogers, 459 Mass. 249, 267 (2011), quoting Renzi v. Paredes, 452 Mass. 38, 52 (2008). Accordingly, there was no abuse of discretion in admitting the recording. See Commonwealth v. Heang, 458 Mass. 827, 855-856 (2011) (store security camera videotape properly admitted where authenticated by testimony of customer who was in store several hours before shootings and saw persons depicted in video, and by detective's testimony as to how video was copied).
To the extent the defendant challenges the authenticity of the security camera recording itself (as opposed to the cell phone recording of it), we note that the evidence established that, on the night of the assault, the store had a video surveillance system, which included a camera mounted outside the store facing southwest. There was also circumstantial evidence that the underlying security camera recording was what it purported to be - indeed, the officer viewed the video footage shortly after the assault, was able to identify the victim in the video footage, and testified that the victim was wearing the same clothes the officer saw the victim wearing shortly after the assault. This was sufficient to authenticate the video recorded by the store's surveillance system.
2. Employees' testimony identifying the defendant.
The defendant next argues that the judge erred by allowing two liquor store employees to testify that the defendant was the person depicted in the photograph they had given to the officer. We review the judge's decision to allow witnesses to offer lay opinion testimony about the identity of a person in a photograph for an abuse of discretion. See Commonwealth v. Matos, 95 Mass.App.Ct. 343, 349 (2019), citing Commonwealth v. Pleas, 49 Mass.App.Ct. 321, 328 (2000). Where, as here, the defendant did not object to the testimony he now challenges, we review the claim of error "under the standard of a substantial risk of miscarriage of justice." Commonwealth v. Johnson, 46 Mass.App.Ct. 398, 400 (1999).
In general, "a 'witness's opinion concerning the identity of a person depicted in a . . . photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the [fact finder].'" Commonwealth v. Vacher, 469 Mass. 425, 441 (2014), quoting Pleas, 49 Mass.App.Ct. at 326. In determining whether there is such a basis, factors for the judge to consider "include whether '[the photograph is] neither so unmistakably clear [n]or so hopelessly obscure that the witness is no better-suited than the [fact finder] to make the identification' and 'whether the defendant is disguised in the photograph or has changed his appearance since the time of the crime'" (quotation omitted). Matos, 95 Mass.App.Ct. at 349, quoting Pleas, supra at 325, 326. "The level of familiarity of the witness with the person shown in the photograph is also a factor." Pleas, supra at 325, citing United States v. Jackson, 688 F.2d 1121, 1125 (7th Cir. 1982), cert. denied, 460 U.S. 1043 (1983) (admitting lay opinion testimony identifying defendant from witness who had seen defendant only once before, concluding that opportunity to observe defendant goes to weight, not admissibility, of such testimony).
Here, there was no error in allowing the employees to testify that the defendant was the person shown in the photograph they had given to the officer. The photograph was neither "so unmistakably clear [n]or so hopelessly obscure" that the witnesses were not any better suited than the fact finder to identify the defendant, Matos, 95 Mass.App.Ct. at 349, quoting Pleas, 49 Mass.App.Ct. at 325, and the defendant's booking photograph, which was admitted in evidence, showed that the defendant had changed his appearance since the earlier photograph was taken. Finally, at least one of the witnesses was familiar with the defendant as a customer of the liquor store. This was a familiarity with the defendant that the judge as fact finder did not, and could not, have. See, e.g., Pleas, 49 Mass.App.Ct. at 328-329.
This case is distinguishable from Commonwealth v. Yang, 98 Mass.App.Ct. 446, 452-453 (2020), on which the defendant relies. In Yang, this court held that lay opinion testimony by a detective identifying the defendant as the subject of a particular photograph created a substantial risk of a miscarriage of justice because the detective was a law enforcement officer, and because he had no "special insight" into the defendant's appearance. Id. at 453. Here, the identification testimony came from two witnesses who were not connected with law enforcement, and who were familiar with the defendant's appearance. Additionally, the judge was careful to ensure that the witnesses did not identify the defendant as the assailant in the security camera footage since they had not been eyewitnesses to the assault and had not participated in a nonsuggestive identification procedure prior to trial. Accordingly, the rule announced in Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), was not implicated in this case.
3. Prosecutor's statements in closing.
The defendant argues that it was improper for the prosecutor to ask the judge "to identify the defendant as the [assailant] in the video" by referring to the defendant's dark skin color and dreadlock hair style. Commonwealth v. Davis, 487 Mass. 448, 469 (2021). "Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence." Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). Where, as here, the defendant did not object to the statements in the prosecutor's closing argument that he now challenges, "we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice." Commonwealth v. Shanley, 455 Mass. 752, 773 (2010).
In closing, the prosecutor argued that the defendant could be identified as the assailant shown in the security camera footage because he was wearing the same distinctive mottled yellow hooded sweatshirt and blue shirt as the defendant could be seen wearing in other photographs admitted in evidence, and because the assailant in the video footage had the same skin color and hair style as the defendant. These were all reasonable inferences that could be drawn from the evidence, and there was no error. See Commonwealth v. Moffat, 486 Mass. 193, 202 n.12 (2020) ("Prosecutors may comment on a defendant's general appearance in closing, to the extent it is relevant"); Commonwealth v. O'Connell, 432 Mass. 657, 659-660 (2000) (prosecutor's comments about defendant's appearance and suggestion that defendant "did something" to change his appearance following crime were reasonable inferences from evidence).
This case is distinguishable from Commonwealth v. Warren, 475 Mass. 530, 535-536 (2016), and Commonwealth v. Cheek, 413 Mass. 492, 496 (1992), where police descriptions of assailants that "could have fit a large number of men who reside in . . . a predominantly [B]lack neighborhood," Cheek, supra, were held insufficient to support reasonable suspicion. Here we are not concerned with a vague and generalized description of a Black suspect, but rather with what may reasonably be inferred about the defendant from the materials in evidence. See Moffat, 486 Mass. at 202 n.12.
4. Sufficiency of the evidence.
Finally, the defendant argues that the evidence was insufficient to sustain his conviction and that the judge therefore erred in denying his motion for a required finding of not guilty. When reviewing the sufficiency of the evidence, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
Here, viewed under the Latimore standard, the evidence was more than sufficient to support the defendant's conviction. The photograph of the defendant given to the officer by the liquor store employees showed that he had been a customer of the liquor store where the victim was also a regular customer; more importantly, it showed the defendant wearing a distinctive mottled yellow hooded sweatshirt, which was also worn by the assailant. The security camera footage clearly showed the assailant beating the victim repeatedly with a silver bat. A woman who lived nearby and knew the defendant by sight testified that she saw the defendant, wearing a "yellow shirt" and carrying "something shiny," run toward her driveway after the assault; the defendant went to the woman's backyard, talked with another resident in her building, and eventually left in an ambulance. The woman found the defendant's silver bat near the back door of her building the next morning; the bat was recovered by police and admitted in evidence.
Judgment affirmed.
Green, C.J., Wolohojian &Henry, JJ.
The panelists are listed in order of seniority.