Commonwealth v. Connolly

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16-P-107 Appeals Court

COMMONWEALTH vs. DAVID A. CONNOLLY.

No. 16-P-107.

Middlesex. December 14, 2016. - May 25, 2017.

Present: Wolohojian, Milkey, & Shin, JJ.

Assault and Battery. Evidence, Videotape, Best and secondary,
Cross-examination, Authentication, Identification,
Opinion. Identification. Witness, Cross-
examination. Fair Trial.

Complaint received and sworn to in the Malden Division of
the District Court Department on August 19, 2014.

The case was tried before Emily A. Karstetter, J.

Justin J. Patch for the defendant.
Alaina Catherine Sullivan, Assistant District Attorney, for
the Commonwealth.

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
2

trial the Commonwealth presented a single witness -- a police

officer who watched a video of surveillance footage 1 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

1
The record does not reflect what medium was used to store
the video.
3

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

2
The defendant was initially charged with assault and
battery on a person over sixty years of age and threatening to
commit a crime. The threat charge was dismissed prior to trial,
and the charge of assault and battery on a person over sixty
years of age was later reduced to simple assault and battery.
3
It is likely that the defendant raised additional
objections, but we do not know the nature of those objections
because portions of the transcript are noted as "inaudible."
4

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
5

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
6

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

4
Although Officer Giardina initially suggested that the
defendant's July 1 and August 7 statements were conflicting, he
agreed on cross-examination that they were consistent. The
officer also agreed that the defendant was "forthright and open"
during his interviews.
7

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:
8

"[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 (2015). This is so, in

part, because the rule excuses production of the original record

where it was "lost or destroyed, and not by the proponent acting

in bad faith." Mass. G. Evid. § 1004(a). See DeJesus, 87 Mass.
9

App. Ct. at 200, quoting from Commonwealth v. Ocasio, 434 Mass.

1, 6 (2001) ("[W]here the contents of a document are to be

proved, the party must either produce the original or show a

sufficient excuse for its nonproduction"). As noted, the

defendant has made no suggestion that the Commonwealth lost the

video in bad faith. 5 Second, the defendant did not move to

dismiss on the ground that the missing video was "potentially

exculpatory," which would have required him to demonstrate that

there was a "reasonable possibility based on concrete evidence

rather than a fertile imagination that access to the [video]

would have produced evidence favorable to his

cause." Commonwealth v. Cintron, 438 Mass. 779, 784 (2003),

quoting from Commonwealth v. Neal, 392 Mass. 1, 12 (1984).

Third, the defendant does not renew his argument that the

officer's testimony was inadmissible hearsay. Last, while the

defendant asserts that his attorney was prevented from

conducting an effective cross-examination of the officer, he

does not raise any independent argument that the admission of

the officer's testimony violated his right of confrontation

under either the Sixth Amendment to the United States

5
Also, the best evidence rule does not apply to videotapes,
at least in the sense that "a properly authenticated copy" of a
videotape "would be admissible if otherwise relevant."
Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294 (2006). See
Mass. G. Evid. § 1001(a) ("[V]ideotapes . . . are not writings
or records").
10

Constitution or art. 12 of the Massachusetts Declaration of

Rights.

We confine our analysis to the two arguments that are

squarely raised in the defendant's brief: (1) that the

officer's testimony should not have been admitted because the

Commonwealth failed to authenticate the video; and (2) that the

officer's identifications of the defendant and White constituted

inadmissible lay opinion testimony. We review the judge's

determination of both of these issues for abuse of discretion.

See Commonwealth v. Rogers, 459 Mass. 249, 268

(2011); Commonwealth v. Despres, 70 Mass. App. Ct. 645, 651
6
(2007).

1. Authentication. The requirement of authentication

calls for the trial judge to make a threshold determination that

"there is evidence sufficient, if believed, to convince the jury

by a preponderance of the evidence that the item in question is

what the proponent claims it to be." Commonwealth v. Purdy, 459

Mass. 442, 447 (2011) (quotation omitted). See Mass. G. Evid.

§ 901. Authenticity can be established through "testimony of a

witness either '(1) that the thing is what its proponent

represents it to be, or (2) that circumstances exist which imply

6
The Commonwealth agrees that both arguments were preserved
and should be reviewed to determine whether the judge abused her
discretion and, if so, whether the error resulted in prejudice
to the defendant.
11

that the thing is what its proponent represents it to

be.'" Commonwealth v. Williams, 456 Mass. 857, 868 (2010),

quoting from Commonwealth v. Nardi, 452 Mass. 379, 396 (2008).

At issue here is whether authentication is required when the

thing to be authenticated, a video recording, is not available

but testimony about its content is offered. According to the

defendant, even though the recording itself was not available,

the Commonwealth still had to lay a foundation establishing that

the video that Officer Giardina watched was in fact a fair and

accurate representation of the July 1, 2014, encounter between

the defendant and White. The Commonwealth, on the other hand,

asserts, summarily, that "there can be no authentication issue

where the recording is not actually admitted into evidence." In

the Commonwealth's view, any questions about the evidentiary

value of the officer's testimony go solely to the weight of the

evidence, and not its admissibility.

We reject the premise that the unavailability of the video

relieved the Commonwealth of any obligation to establish, as a

condition of admissibility, that what Officer Giardina watched

was a fair and accurate depiction of the events in question. Of

course, had the video been available at trial, the Commonwealth

would have had to authenticate it before it could be admitted.

See Commonwealth v. Pytou Heang, 458 Mass. 827, 855

(2011); Commonwealth v. Rogers, 459 Mass. 249, 267 (2011). This
12

would typically be done through one of two means -- 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.

See Pytou Heang, 458 Mass. at 855 (surveillance videotape

authenticated by eyewitness who testified that it was fair and

accurate representation of incident); Commonwealth v. Leneski,

66 Mass. App. Ct. 291, 295 (2006) (compact disc containing

digitally recorded surveillance authenticated by witness who

"testified as to the procedure he used in the surveillance

process, the copying process, and to the contents of the

[compact disc]"). But because the video was lost, the

Commonwealth offered Officer Giardina's testimony as secondary

evidence of its contents. It logically follows that, in order

for this secondary evidence to be admissible, the Commonwealth

had to lay enough foundation to "allow a reasonable jury to

conclude" that the primary evidence, the video the officer

watched, was in fact what he represented it to be. Purdy, 459

Mass. at 449.

We draw support for this conclusion from cases requiring

the proponent of a "communication sought to be introduced in

evidence" to first establish its "authenticity," irrespective of

whether the communication is introduced through testimony or a
13

physical item of evidence. Ibid. For instance,

"authentication" is required to admit testimony about "the

substance of a telephone conversation." Commonwealth v. Howard,

42 Mass. App. Ct. 322, 324 (1997). See Mass. G. Evid.

§ 901(b)(6). This means that, before a witness can testify

about what was said during a telephone conversation, the

proponent of the testimony must first "authenticate the

conversation" by laying sufficient foundation to establish the

identity of the other person on the line. Purdy, 459 Mass. at

449. Accord Commonwealth v. Anderson, 404 Mass. 767, 770

(1989); Howard, 42 Mass. App. Ct. at 324–325. Similarly, to

admit testimony about the substance of electronic messages, the

proponent must "authenticate the messages" through foundational

testimony establishing the "identi[ty] [of] the person who

actually sent the communication." Williams, 456 Mass. at 869.

Applying the reasoning in these cases, we conclude by

analogy that, in order for Officer Giardina's testimony about

the contents of the missing video to be admissible, the

Commonwealth first had to lay sufficient foundational facts to

demonstrate, by a preponderance of the evidence, that the video

was a genuine representation of the events that occurred on the

night of July 1, 2014. The Commonwealth came far short of

meeting that burden, and it does not argue otherwise in its

brief. The only foundation laid was the officer's testimony
14

that he spoke with Crouse on August 7, 2014; that he

"believe[d]" Crouse to be "one of the building supervisors";

that "[t]here was video of the incident"; and that he watched

the video. The Commonwealth presented no evidence identifying

the date and time of the video or the place shown in it. It did

not call Crouse to testify about the surveillance procedures in

the building -- for example, about the placement of the cameras

and the nature of the equipment -- or about the circumstances

that led him to view the video, and show it to the officer, over

one month after the incident. Moreover, despite common

knowledge that video images, particularly digital images, can be

manipulated, the Commonwealth presented no evidence about how

the video material was stored during the intervening month

between the incident and the officer's viewing. It also did not

lay a foundation through an eyewitness to the incident.

Cf. Pytou Heang, 458 Mass. at 855.

In short, the evidence did not come close to establishing a

sufficient foundation for the jury to determine that the video

was what Officer Giardina claimed it to be -- a fair and

accurate recording of the incident that occurred between the

defendant and White on July 1, 2014. See Williams, 456 Mass. at

869 (testimony about messages sent from MySpace Web page

inadmissible where foundational evidence established only that

they were sent by someone with access to Web page and no expert
15

testimony was presented regarding Web page's security). Nor was

it even possible for the Commonwealth to lay the necessary

foundation through the officer's testimony. The officer was not

an eyewitness to the incident and had no personal knowledge

about the surveillance procedures in the building or how the

video was stored. Cf. Pytou Heang, 458 Mass. at 855; Leneski,

66 Mass. App. Ct. at 295. Thus, in any retrial, the

Commonwealth will have to establish the authenticity of the

video through someone else's testimony. 7

2. Lay opinion on identification. We turn to the

defendant's argument that Officer Giardina's identifications of

the defendant and White constituted inadmissible lay opinion, as

this issue could recur at any retrial. 8 Here, too, we conclude

7
We note that, even were the video properly authenticated,
the judge could still exclude testimony about its contents if
the probative value of the testimony is substantially outweighed
by the danger of unfair prejudice to the defendant. See
Commonwealth v. Rogers, 459 Mass. 249, 267 (2011); Mass. G.
Evid. § 403.
8
The Commonwealth asserts that identity is not at issue
because the defendant did not dispute that he and White had an
encounter in the hallway of the apartment building. While we
agree that this case is not so much about identity, but more
about the details of the encounter, the defendant did not
stipulate that he was the person in the video, he objected to
the officer's identification testimony at trial, and he presses
the issue on appeal. See Commonwealth v. Ramsey, 79 Mass. App.
Ct. 724, 730 n.9 (2011) (describing procedures for resolving
facts by stipulation in criminal trials). We will therefore
address his argument.
16

that the Commonwealth failed to lay an adequate foundation to

admit the officer's testimony.

A lay opinion is only admissible at trial if it "is

(a) rationally based on the witness's perception; (b) helpful to

a clear understanding of the witness's testimony or in

determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of

[Mass. G. Evid.] Section 702." Mass. G. Evid. § 701.

See Commonwealth v. Canty, 466 Mass. 535, 541 (2013). "The

identity of a third person always is a matter of inference and

opinion . . . ." Commonwealth v. Cappellano, 392 Mass. 676, 679

(1984), quoting from Commonwealth v. Kennedy, 170 Mass. 18, 24

(1897). See Commonwealth v. Austin, 421 Mass. 357, 366

(1995); Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 323–324

(2000). Normally, in determining whether to admit a witness's

identification of a person in a video, the key question for the

judge to consider is whether the witness's testimony would help

the jury to make their own identification. Pleas, 49 Mass. App.

Ct. at 326. As explained in Pleas, the witness's testimony is

helpful in this respect 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." Ibid.

Accord Commonwealth v. Vacher, 469 Mass. 425, 441 (2014).

Factors relevant to this inquiry include (1) whether the video
17

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." Pleas, 49 Mass. App.

Ct. at 325–326 (quotation omitted).

The parties appear to agree that the Pleas analysis is of

limited utility in this case because two of the factors --

whether the quality of the video is such that the witness is in

no better position than the jury to make the identification, and

whether the person on the video was disguised or has changed his

appearance by the time of trial -- presume that the recording is

available at trial for the jury to view. From there, the

parties' positions diverge. The Commonwealth argues that,

because the video itself was not available, Officer Giardina's

"opinion testimony identifying the defendant as the assailant"

was necessarily helpful to the jury because they "lack[ed] the

ability to view the image or recording" with their own eyes.

Conversely, the defendant argues that the officer's opinion was

necessarily unhelpful to the jury because they were "unable to

view the video and make [their] own identifications"; thus, in

the defendant's view, the officer's testimony was categorically
18

inadmissible because it "only supplant[ed] the jury's role as

fact-finder."

The parties have cited no Massachusetts reported decisions

addressing this question, but the overwhelming weight of

authority from other jurisdictions permits testimony about the

contents of a video recording that is innocently lost or

destroyed, 9 which counsels against the categorical exclusion

urged by the defendant. Two of those cases, State v. Robinson,

118 A.3d 242 (Me. 2015), and State v. Thorne, 173 N.C. App. 393

(2005), specifically addressed whether a witness's

identification testimony constituted inadmissible lay opinion.

In Robinson the court held, as a matter of first impression in

Maine, that "identification testimony reporting observations of

a photo or video that has been lost or destroyed" is admissible

so long as a sufficient foundation is laid to establish (1) that

"the witness's testimony [is] adequately grounded in his own

firsthand knowledge" and (2) that, "[e]ven if the video were

available at trial," the witness would be "in a better position

9
See, e.g., Pritchard v. State, 810 N.E.2d 758, 760–761
(Ind. Ct. App. 2004); State v. Thorne, 173 N.C. App. 393, 396-
399 (2005); State v. Rollins, 46 Kan. App. 2d 17, 27-29 (2011);
Hammock v. State, 311 Ga. App. 344, 344-345 (2011); Yero v.
State, 138 So.3d 1179, 1184–1185 (Fla. Dist. Ct. App. 2014);
State v. Robinson, 118 A.3d 242, 248–252 (Me. 2015).
19

than the jurors to make the identification." 10 118 A.3d at 250.

This first requirement was met in Robinson by the witness's

testimony that he was familiar "not only with [the defendant's]

physical attributes, but also with his body movements, as the

result of working with him for two years." Ibid. The second

requirement was met by the witness's testimony that the missing

video "was not so 'hopelessly obscure' that the [witness] could

not better identify [the defendant] in the video than could a

jury." Ibid. 11

10
We part ways with the court in Robinson with respect to
this second requirement. The requirement adopts a variant of
the Pleas analysis, under which the court first assumes an
imaginary state of affairs where the video has not gone missing,
and then analyzes whether, in this imaginary state, the witness
would be "better" able than the jury to make the identification.
Robinson, 118 A.3d at 250. We think this makes little sense
because the Pleas analysis exists solely to assess the
helpfulness of identification testimony when the video is in
fact available to the jury at trial. See 49 Mass. App. Ct. at
425-426. The reason for the Pleas analysis is that, if the jury
can see the video with their own eyes, they have the ability to
draw their own opinion about whether the defendant is the person
in the video; thus, they do not need a witness's help unless he
has some superior knowledge that puts him in a better position
to make the identification. On the other hand, if the jury
cannot see the video, they have no basis on which they can form
their own opinion. In that situation it makes no sense to
assess the helpfulness of the witness's testimony by asking
whether he is better able to make the identification than the
jury. As discussed below, we think the more appropriate measure
of helpfulness is whether the proponent of the testimony has
provided adequate foundational facts to enable the jury to test
the accuracy and reliability of the witness's identification.
11
In our view the quality of the video is relevant to
whether the witness's identification is rationally based on his
20

Similarly, in Thorne the court held that the trial judge

properly allowed a police officer to testify about the contents

of a lost videotape, including that he perceived the gait of the

perpetrator on the videotape to be similar to that of the

defendant. 173 N.C. App. at 398-399. This opinion testimony

was permissible, the court concluded, because it was accompanied

by foundational testimony that the officer was "trained to

notice differences in the actual ways people walk," "had

observed the defendant's gait in the past," and "observed the

[perpetrator's] gait on the videotape several times." Id. at

399.

We find the general approach of these cases persuasive and

decline the defendant's invitation to adopt a categorical rule

excluding identifications made from surveillance videos that are

later lost or destroyed through no fault of the Commonwealth.

The fact that Officer Giardina made his identifications from a

video does not, on its own, render his opinion so unreliable

that it should be excluded. We allow witnesses to give

identification testimony even when they have used visual aids,

such as binoculars, to make the identification.

See Commonwealth v. Grace, 43 Mass. App. Ct. 905, 906–907

(1997). Other jurisdictions have allowed witnesses to testify

perception, not to whether the witness is "better" able than the
jury to identify the defendant from the missing video.
21

as to identifications made by means of live video feeds. See,

e.g., People v. Tomei, 986 N.E.2d 158, 165 (Ill. Ct. App. 2013),

quoting from People v. Tharpe-Williams, 286 Ill. App. 3d 605,

611 (1997) ("A witness's testimony about what he or she observed

on a live video feed is no different than if he or she 'had been

100 yards away from defendant at the time of the incident but

. . . needed a telescope to observe what was happening'").

Likewise, we think that an identification made from a lost or

destroyed video is admissible so long as the appropriate

foundation is laid and the testimony is not excludable under

some other evidentiary rule. See Pritchard v. State, 810 N.E.2d

758, 760 (Ind. Ct. App. 2004) (prison officials' recounting of

what they saw on "purged" video recording was "no different,"

for purposes of admissibility, "than if they had been standing

on [the] cell block . . . observing the incident"). The judge

could still, however, exclude the identification if its

probative value is substantially outweighed by the risk of

unfair prejudice to the defendant. See Pleas, 49 Mass. App. Ct.

at 327–328; Mass. G. Evid. § 403. Cf. Commonwealth v. Johnson,

473 Mass. 594, 599 (2016), quoting from Commonwealth v. Jones,

423 Mass. 99, 107 (1996) (judge can "exclude a suggestive and

unreliable eyewitness identification" if it "is more prejudicial

than probative").
22

Here, the Commonwealth did not lay enough foundation to

establish that Officer Giardina's identifications of the

defendant and White were "rationally based on [his] perception"

and "helpful to a clear understanding of [his] testimony or in

determining a fact in issue." Mass. G. Evid. § 701. The extent

of the foundational testimony was that Officer Giardina spoke to

White and the defendant on July 1, 2014; that White appeared

"elderly" and had trouble walking; and that he met again with

the defendant on August 7, 2014. The officer gave no

description of the defendant's physical characteristics, such as

his height, build, or gait. Cf. Robinson, 118 A.3d at 250.

With respect to his perceptions of the video, the officer

provided no testimony at all explaining how he could positively

identify White and the defendant as the individuals on the

video. He did not describe the physical characteristics of

either individual, and, other than his testimony on cross-

examination that the video was "black and white" and facing

"straight down the hallway," he provided no details about the

quality of the video and whether it was good enough to enable

him to make an identification. Cf. ibid. Instead, the officer

simply stated that "[i]n the video you can see Mrs. White" and

"Mr. Connolly" and then proceeded to describe his observations

of their encounter.
23

Because the officer did not explain how he came to the

conclusion that the people on the video were White and the

defendant, his opinion was not helpful to the jury. "When a

witness has not identified the objective bases for his opinion,"

the opinion is inadmissible because it "does not help the jury

but only tells it in conclusory fashion what it should

find." United States v. Hampton, 718 F.3d 978, 981 (D.C. Cir.

2013). See United States v. Freeman, 730 F.3d 590, 597 (6th

Cir. 2013) (lay opinion should not "merely tell the jury what

result to reach" [quotation omitted]). For the officer's

identification testimony to be helpful, therefore, he had to

provide enough information to allow the jury to conduct an

independent assessment of the accuracy and reliability of his

identifications. Instead, the officer simply told the jury that

the individuals in the video were White and the defendant.

Rather than being helpful, this testimony usurped the jury's

role as the finder of fact, and it should not have been

admitted. See Hampton, 718 F.3d at 983 (case agent's testimony

interpreting defendant's telephone conversations based on his

review of some 20,000 recorded calls, only small number of which

were played for jury, was improper lay opinion because "jury had

no way of verifying his inferences or of independently reaching

its own interpretations"); United States v. Grinage, 390 F.3d

746, 750 (2d Cir. 2004) (similar); Freeman, 730 F.3d at 597
24

(similar). Cf. Cappellano, 392 Mass. at 679 (identification had

sufficient foundation where witness testified he saw his

assailant, who came within two feet of him, approximated

assailant's height and weight, and gave detailed account of

assailant's movements).

3. Prejudice to the defendant. We need not dwell long on

whether the erroneous admission of Officer Giardina's testimony

prejudiced the defendant. His testimony was the Commonwealth's

only evidence. The error was therefore plainly prejudicial.

We note, in addition, that we have found no case, from any

jurisdiction, in which a defendant was convicted based solely on

the testimony of a witness reporting what he observed on a

surveillance video that was destroyed before the defense had an

opportunity to view it. Here, that lack of opportunity

seriously hampered defense counsel's ability to conduct an

effective cross-examination. Indeed, when counsel tried to

cross-examine the officer about the quality of the video, he

only succeeded (through no fault of his own) in soliciting

testimony favorable to the Commonwealth -- that the video gave

the officer a straight view down the hallway. The prosecutor

then relied heavily on this testimony in her closing argument.

The unfair prejudice to the defendant was heightened by the

fact that the officer's testimony was offered not just for the

purpose of identification, but also as the only substantive
25

evidence of the alleged crime. The officer's description of the

defendant "shoving" the victim with two hands directly

contradicted the theory of the defense, and the jury had no

information that would have allowed them to independently assess

the reliability of that description. For all practical

purposes, the jury's role was limited to crediting the officer's

testimony in toto or rejecting it in toto. We note our doubts

as to whether the defendant could have ever received a fair

trial in these circumstances. See United States vs. Brown, U.S.

Dist. Ct., No. 08–0098, slip op. at 5 (W.D. Pa. July 29, 2009)

(probative value of testimony about contents of destroyed video

was substantially outweighed by danger of unfair prejudice

because it would be "extremely difficult for defendant's counsel

to cross-examine the[] witnesses as to the accuracy of their

recollection given that counsel ha[d] not viewed the video and

d[id] not have any other objective account of the content of the

tape with which to compare"); People v. Sykes, 972 N.E.2d 1272,

1280–1283 (Ill. Ct. App. 2012) (reversible error to admit

witness's testimony that he watched original videotape, which

was clearer than one before jury, and saw defendant commit

alleged crime, as such testimony "invaded the province of the

jury"). Cf. Vacher, 469 Mass. at 442 (erroneous admission of

identification testimony harmless because "jury were capable of

drawing the same conclusion" from photographs in
26

evidence); Commonwealth v. Anderson, 19 Mass. App. Ct. 968, 969

(1985) (erroneous admission of identification testimony harmless

where photographs were in evidence, "permitting the jury to

decide

independently whether the defendant was the person on film"). 12

Judgment vacated.

Verdict set aside.

12
The defendant raises a third claim of error that his
constitutional right against self-incrimination was violated
when he was asked to recite his plea of not guilty in front of
the jury. Although the better practice might have been to take
the plea outside the presence of the jury, the defendant did not
object to the procedure employed by the judge and has failed to
demonstrate on appeal that any error resulted in a substantial
risk of a miscarriage of justice. See Commonwealth v. Gilman,
89 Mass. App. Ct. 752, 763 (2016).