Opinion
20-P-1369
04-22-2022
COMMONWEALTH v. Phuong HUYNH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon (to wit: shod foot). On appeal the defendant argues that the trial judge erred by permitting a police witness to identify the defendant as an assailant seen in a video recording and by admitting testimony about the defendant's gang membership. We affirm.
On August 18, 2013, at around 12:30 A.M. , a bystander saw a crowd of people fighting outside a nightclub in Lowell. The bystander pulled out his cell phone and recorded a video from ten to fifteen feet away. The video shows a man lying on the ground surrounded by a group of people kicking him. One of the men attacking the victim wore a striped shirt and can be seen repeatedly kicking and punching the victim.
Before trial the Commonwealth filed a motion in limine asking that Sergeant Detective Joseph Murray, who led the investigation, be allowed to identify the defendant from the video. In a second motion in limine, the Commonwealth asked that Murray be allowed to testify about the defendant's membership in the gang Cambodian Mob Family (CMF). The defendant opposed both motions. After a voir dire of Murray, the judge ruled that Murray could identify the defendant and "other people that [Murray] recognizes" from the video. The judge further ruled that Murray could testify about the defendant's membership in CMF and identify other CMF members involved in the assault, but precluded evidence of other gang activity that occurred the same night.
1. Identification. At trial the Commonwealth offered in evidence still photographs taken from the video, as well as the video itself, without objection. Murray then identified the defendant as the man in the video wearing the striped shirt and noted identifying features such as his arm tattoos, height, and haircut.
The defendant argues that Murray's testimony was inadmissible because it constituted improper opinion evidence. We disagree. A lay witness may testify as to the identity of a person in a video if "there is some basis for concluding that the witness is more likely to correctly identify the [person] from the [video] than is the jury" (quotation omitted). Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 326 (2000). "Factors relevant to this inquiry include (1) whether the video is ‘so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification’; (2) ‘the level of familiarity of the witness with the person shown in the [video]’; and (3) whether the person ‘[was] disguised in the [video] or has changed his appearance since the time of the crime.’ " Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 589 (2017), quoting Pleas, supra at 325-326.
Here, the video, while fairly clear, shows multiple people moving in and out of the frame, and the man in the striped shirt is only seen for a few seconds in profile. As defense counsel argued in closing, the quality of the video hindered the jury from making "a cross-racial identification," even if they watched the video several times. Murray, on the other hand, was better positioned than the jury to make the identification because he was very familiar with the defendant, having interacted with him at least one hundred times over fifteen years. The judge was therefore within his discretion to admit Murray's testimony because it "could be helpful to the jurors" in making their own identification. Pleas, 49 Mass. App. Ct. at 329.
2. Gang evidence. Murray testified that he knew the defendant to be a member of CMF and that several others in the video were also members. The defendant argues that the judge erred by admitting this testimony because it was not probative of any issue in the case. Again, we disagree.
It was within the discretion of the judge to weigh the probative value of Murray's testimony against its prejudicial effect. See Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999). We discern no abuse of that discretion. The judge properly concluded that the testimony was probative of identity because it "tend[ed] to suggest that the perpetrator [was] a member of CMF." In addition, the judge took several steps to minimize the prejudice to the defendant: he precluded the Commonwealth from offering evidence of other gang activity, individually questioned prospective jurors about whether evidence of gang membership would affect their impartiality, and excluded some jurors based on their answers. Also, before Murray testified about the defendant's gang affiliation, the judge instructed the jury that "any details of the circumstances under which ... Murray observed [the defendant]" should be used only as "evidence of identity." See Commonwealth v. Swafford, 441 Mass. 329, 332 (2004).
The defendant points out that the judge did not give a final instruction about the proper use of gang affiliation evidence. But the defendant did not ask for such an instruction, and we are not persuaded that the judge's failure to give it sua sponte created a substantial risk of a miscarriage of justice. We do not agree that the judge placed no limitation on the use of the evidence. As noted, the judge instructed that the purpose of the evidence was to establish identity, and he also took other steps to minimize prejudice. Moreover, the Commonwealth did not use the evidence to demonstrate the defendant's bad character or criminal propensity, but properly argued that it was relevant to whether the defendant was the assailant in the video. In these circumstances "[w]e are not ‘left with uncertainty that the defendant's guilt has been fairly adjudicated’ as required to reverse under the substantial risk of a miscarriage of justice standard." Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 11-12 (2010), quoting Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
Judgment affirmed.