Opinion
16-P-726
04-20-2017
COMMONWEALTH v. Thomas D. SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Thomas D. Smith, was charged in the Roxbury Division of the Boston Municipal Court Department with malicious destruction of property valued over $250. After a jury-waived trial, the defendant was convicted of the lesser included offense of malicious destruction of property valued under $250. On appeal, he contends that (1) the motion for a required finding of not guilty should have been granted because the Commonwealth presented insufficient evidence that the defendant was the individual seen in the surveillance videotape (video) destroying the property, and (2) admission at trial of a police officer's identification of the defendant as the person in the video constituted an abuse of discretion. We affirm.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the evidence of the defendant's identity as the person who threw the rock was insufficient. We disagree.
When considering a motion for a required finding of not guilty, we must determine "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).
On the night of the incident in question, Boston police Officer Robert Lewis responded to Alex Market for a report of vandalism. The store manager reported that a man had thrown a rock through the front glass door of the store. Officer Lewis observed a rock and glass scattered in the store. Officer Lewis viewed the surveillance video and did not immediately recognize the person in the video. Officer Lewis testified that four days later, while he was on patrol, he saw the defendant and immediately realized that he was the person in the video and placed the defendant under arrest. The Commonwealth presented evidence that on the night the defendant was arrested, he was wearing a red hat, gray sweatshirt, and dark colored jeans, the same clothing as the person shown in the surveillance video. Officer Lewis testified that he had years of experience working in the same area, where he had previously observed the defendant many times and had spoken with him. Parts of the surveillance video were played for the judge during the bench trial, and the judge made determinations as to Officer Lewis's credibility. We conclude that the evidence presented at trial, viewed in the light most favorable to the Commonwealth, was sufficient for a rational fact finder to find that the defendant was the person who caused the damage to the door of Alex Market.
2. Identification testimony. Over the defendant's objection, the surveillance video was admitted in evidence. The defendant contends that it was an abuse of discretion for the judge to allow Officer Lewis to testify as to his opinion that the person throwing the rock in the surveillance video was the defendant. We disagree.
In determining whether a lay witness's identification of a person appearing in a photograph or video is admissible, courts consider a variety of factors including the quality of the images, the level of familiarity of the witness with the person depicted in the video, and whether the suspect was disguised in the video or has altered his appearance since the time of the crime. See Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325-326 (2000), and cases cited. "These factors ... distill to the following: ‘A witness's opinion concerning the identity of a person depicted in a surveillance 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].’ " Id. at 326, quoting from United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984). "Put another way, ‘such testimony is admissible ... when the witness possesses sufficiently relevant familiarity with the defendant that the [fact finder] cannot also possess....' " Id. at 326-327, quoting from United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995).
Here, the factors weighed in favor of admitting Officer Lewis's identification. First, although the quality of the surveillance video is relatively good, the defendant wore a red hat with a brim that partially obscured his face throughout the incident. See id. at 325, quoting from Jackman, supra at 5 (lay opinion testimony may be admitted if video is neither "so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification"). These factors—the video quality, the coverage of the head and face, and Officer Lewis's level of familiarity with the defendant from having encountered him "very often" around the neighborhood—make it more likely that Officer Lewis was in a better position than the judge to identify the defendant from the video and photographs. See id. at 325-326. Thus, the judge did not abuse his discretion in admitting Officer Lewis's identification of the defendant.
This panel of the Appeals Court has viewed the video. See Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011) (appellate court is in same position as trial court in reviewing video and will make independent review of documentary evidence).
The defendant argues that the lack of explanation for Officer Lewis's sudden "epiphany" that the man in the surveillance video was the defendant demonstrates the inadequacy of his opinion testimony. Officer Lewis in fact testified that he had recognized the man in the surveillance video as someone familiar to him, but did not have a name until after he encountered the defendant days later. The judge was entitled to credit this testimony. See Cramer v. Commonwealth, 419 Mass. 106, 110, 111 n.2 (1994) ("The determination of the weight and credibility of the evidence is within the province of the [fact finder]"). That was well within the judge's ample discretion.
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Judgment affirmed.