Opinion
15-P-264
04-04-2016
COMMONWEALTH v. JAMIEHL COOK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Jamiehl Cook, appeals his convictions of unlawful possession of a firearm and unlawful carrying of a loaded firearm, alleging that surveillance videotapes of the area where the shooting occurred were improperly admitted, that the Commonwealth presented insufficient evidence to establish guilt beyond a reasonable doubt, and that the prosecutor's closing statement resulted in prejudicial error. We affirm.
Background. Based on the evidence that was admitted at trial, the jury were warranted in finding the following facts. On June 14, 2013, at approximately 5:00 A.M., the defendant and his girl friend were walking outside her apartment building at 165 Columbia Road (165) in the Dorchester area of Boston. Two unidentified males approached the pair and began shooting at them. The defendant ran to hide in the front entryway of the apartment building at 165.
Moments later, the defendant, who was wearing a black jacket and a pink hooded sweatshirt with a white T-shirt sticking out underneath, emerged from the entryway of 165. The defendant raised his arm, and fired a handgun at the two assailants. The assailants retreated in the direction of 173 Columbia Road (173). The defendant's girl friend was struck in the leg by a bullet. Immediately afterwards, the defendant returned to 165, paced around while ringing the doorbells repeatedly, and then entered the lobby of 165. Police cruisers began to arrive about ten minutes later.
One of the surveillance videotapes shows a bright flash emitted from the end of the defendant's arm while it is pointed straight out in a shooting position; he appears to be holding a gun. Christopher Finn, a ballistics expert for the Commonwealth, testified that firing a gun could "generate" "a flash."
Bullet casings from three different caliber rounds were found at the scene. The defendant was interviewed by police at the scene, during which he wore a black jacket and pink hooded sweatshirt. The assailants were never apprehended.
There were five .380 caliber casings all fired from the same gun, six .45 caliber casings all fired from the same gun, and five nine millimeter casings all fired from the same gun.
Discussion. 1. Authentication and admission of surveillance footage. Over the defendant's objections, the trial judge allowed surveillance videotapes from 165 and 173 to be admitted in evidence through the testimony of prosecution witness Detective Charbonnier. On appeal, the defendant maintains that the judge abused his discretion because the Commonwealth failed to authenticate the videotapes as accurate depictions of the events they show. The question for us is whether there was sufficient evidence to permit the judge to conclude that a reasonable jury, in turn, could determine "that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2015). See also Mass. G. Evid. § 104(b) (2015). In order to authenticate the videotape evidence, it was not necessary for the Commonwealth to produce an eyewitness who saw what is depicted in the videotape, or a witness who maintained the videotaping system or who is a traditional keeper of the records. See Commonwealth v. Perez, 89 Mass. App. Ct. 51, 58 (2016). Instead, the requirement of authentication is satisfied when "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances," permit the jury to infer that the videotape is what the Commonwealth says it is, namely, a video of the shooting in question. Mass. G. Evid. § 901(b)(4) (2015). See Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977).
Here, Detective Charbonnier testified that he acquired the videotapes from the property manager who managed both 165 and 173, having requested footage from the morning of the crime. Detective Charbonnier confirmed that the videotapes accurately depicted the area inside and outside 165 and outside 173, including the surrounding sidewalk. The videotapes show three points of view -- the outside entryway of 165, the lobby of 165, and a street view from 173. The videotape from 165 shows an individual in a black jacket with a pink hooded sweatshirt underneath darting in and out of the alcove to the building less than two seconds before someone dressed in a black jacket is seen on the 173 videotape walking from the direction of 165 and pointing and shooting what appears to be a firearm. Immediately afterwards, a person who appears to be the same individual with the pink hooded sweatshirt and black jacket is seen ringing the doorbells and pacing back and forth in the 165 entryway. By lining up the timestamps and comparing the locations of the cameras, a reasonable factfinder could conclude that all of the videotapes were simultaneously recorded.
Because the 173 videotape is taken from a distance, it is not possible to see whether the shooter is wearing a hooded sweatshirt under the jacket.
The defendant argues that a discrepancy in the timestamps invalidate the videotapes' authenticity. Defense counsel reported that the timestamps on her copy of the exhibits were different from the timestamps referred to in the brief for the Commonwealth. We have viewed the original exhibits in the case. The timestamps are consistent with those reported and relied on by the Commonwealth. Even if the timestamps were off by several hours, we believe the videotapes were sufficiently authenticated by the circumstantial evidence discussed, supra.
The videotape from 173 also depicts the arrival of an ambulance and police officers on the scene roughly ten minutes after the shootings. Officers who testified at trial corroborated that time of arrival on the scene, strongly suggesting that the videotape from 173 was recorded on the date and at the time in question. Law enforcement officers can be seen collecting shell casings and placing markers along the sidewalk for the last roughly thirty minutes of the 173 videotape. This evidence, taken together with the alignment of the timestamps in the videotapes, was sufficient to allow a reasonable factfinder to conclude that the videotapes depicted the crime that was the subject of the charges brought against the defendant.
2. Sufficiency of the evidence. The defendant further contends that the Commonwealth failed to present sufficient evidence to allow a jury to find him guilty of unlawful possession of a firearm and unlawful carrying of a loaded firearm. We review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
Under G. L. c. 269, § 10(a), an individual is guilty of unlawful possession of a firearm if the Commonwealth can prove that he or she knowingly possessed a working firearm without a valid license. If the Commonwealth establishes that the firearm was loaded, G. L. c. 269, § 10(n), subjects the defendant to an enhanced penalty.
A firearm is defined as "a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches." G. L. c. 140, § 121, as amended by St. 1998, c. 180, § 8.
At trial, the defendant's girl friend identified the defendant from a still photograph taken from the videotape of the 165 entryway. The defendant does not dispute this identification, nor does he dispute that the clothing he was wearing while conversing with police on the scene following the shooting -- a black jacket and a pink hooded sweatshirt -- matches the clothing of the individual in the 165 videotape. This is sufficient to support the Commonwealth's theory that the person seen firing the weapon in the 173 videotape was the defendant.
As to both the element of a working firearm and the question whether the gun was loaded, the 173 videotape shows the two attackers running in the opposite direction just as the defendant fires the weapon, implying that they feared being struck with live ammunition. Furthermore, three different types of bullet casings were found at the crime scene, indicating that three different firearms were used (presumably, one by each shooter). The .380 casings were found in the area just outside 165, where the defendant admitted that he stood, and where the flash can be seen on the 173 videotape. A ballistician testified that all the casings, including the .380 shells, were produced by working firearms. The three different locations of each type of casing are consistent with the videotapes and the defendant's account when he was interviewed at the scene. This evidence was sufficient to allow a jury to find the defendant guilty.
3. The prosecutor's closing argument. The defendant contends that the prosecutor inappropriately misstated evidence in his closing statement. The prosecutor argued in closing, "When you take a look at the video you're going to see exactly one person wearing a black fleece and a pink hooded sweatshirt because that person was [the defendant]. His girlfriend identified him. He identified himself." There is no dispute over the fact that the defendant's girl friend identified him as the person depicted in the videotape.
In one sense, the remainder of the prosecutor's statement also is true because the detectives testified that when they interviewed the defendant shortly after the shooting, he was wearing a black jacket, a pink hooded sweatshirt, and a black hat. Even if the prosecutor's statement is understood to mean that the defendant actually told the police he was the person depicted in the videotapes, we agree with the Commonwealth that in view of the strong circumstantial evidence pointing to the defendant as the person in the videotapes, the statement was more a case of "[e]xcusable hyperbole" than purposeful misconduct or reckless disregard for the evidence. Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). We also take into consideration that the judge instructed the jury both before the trial and in the final instructions that they were not to consider closing arguments as part of the evidence. Commonwealth v. Maynard, 436 Mass. 558, 571 (2002) ("The jury are presumed to follow the judge's instructions"). On the record before us, we are confident that the prosecutor's remark, if error, did not contribute to the outcome. The videotapes, in addition to the testimony by the police, the ballistics expert, and the defendant's girl friend, were powerful evidence that made this a compelling circumstantial case of guilt.
Judgments affirmed.
By the Court (Kafker, C.J., Rubin & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 4, 2016.