Commonwealth v. Brum

• Court: Massachusetts Supreme Judicial Court
• Decided: August 10, 2023
• Docket: SJC 13383
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13383

COMMONWEALTH vs. DANIEL BRUM.

Bristol. April 5, 2023. - August 10, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Assault and Battery by Means of a Dangerous Weapon. Evidence, Testimony before grand jury, Identification, Prior inconsistent statement, Hearsay, Opinion, Videotape. Identification. Deoxyribonucleic Acid. Practice, Criminal, Argument by prosecutor.

Indictment found and returned in the Superior Court Department on October 30, 2020.

The case was tried before Robert C Cosgrove, J.

The Supreme Judicial Court granted an application for direct appellate review.

John P. Warren for the defendant. Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth. Anton Robinson, of New York, Katharine Naples-Mitchell, Eliza Lockhart-Jenks, Radha Natarajan, & Chauncey B. Wood, for Criminal Justice Institute at Harvard Law School & others, amici curiae, submitted a brief. 2

GEORGES, J. The defendant, Daniel Brum, was found guilty

of assault and battery by means of a dangerous weapon in

connection with the August 30, 2020, stabbing of the victim,

Jordan Raposo. Prior to trial, the victim's then girlfriend,

Shyla Bizarro, identified the defendant to the police as the

victim's attacker from surveillance video footage. She also

testified to her identification of the defendant from the

surveillance video before a grand jury.

Prior to Bizarro's testimony at trial, however, a voir dire

of Bizarro revealed that she intended not only to recant both

her statements to police and her grand jury testimony but also

to claim that the victim pressured her into making those prior

statements. As a result, the trial judge admitted substantively

the portions of Bizarro's grand jury testimony that she had

recanted, including her prior statements of identification. See

Commonwealth v. Cong Duc Le, 444 Mass. 431, 439-441 (2005);

Commonwealth v. Daye, 393 Mass. 55, 75 (1984); Mass. G. Evid.

§ 801(d)(1)(A), (C) (2023).

On appeal, the defendant challenges whether the admitted

portions of Bizarro's grand jury testimony fell within the

hearsay exemptions for prior inconsistent statements, see Mass.

G. Evid. § 801(d)(1)(A), and statements of identification, see

Mass. G. Evid. § 801(d)(1)(C). He also challenges the

admissibility of portions of that testimony on other independent 3

grounds, including that it contains multilevel hearsay and

inadmissible lay opinion testimony. Additionally, the defendant

raises various other evidentiary errors and asserts that

portions of the prosecutor's closing argument were improper.

For the reasons discussed infra, we conclude that the trial

judge properly admitted portions of Bizarro's grand jury

testimony in accordance with the hearsay exemption for prior

inconsistent statements. See Daye, 393 Mass. at 75; Mass. G.

Evid. § 801(d)(1)(A). We further conclude that the portions of

Bizarro's grand jury testimony identifying the defendant in the

surveillance video independently satisfied the hearsay exemption

for statements of identification. See Cong Duc Le, 444 Mass. at

439-441; Mass. G. Evid. § 801(d)(1)(C). In particular, we

decline to adopt the defendant's argument that the statements of

identification within Bizarro's grand jury testimony did not

satisfy the requirements under our common law as nonhearsay

under Cong Duc Le and Daye because Bizarro was not a percipient

witness to the underlying crime. Finding no grounds for

reversal on that basis or in the defendant's remaining

arguments, we affirm the defendant's conviction.1

1 We acknowledge the amicus brief submitted by the Criminal Justice Institute at Harvard Law School, the New England Innocence Project, the Massachusetts Association of Criminal Defense Lawyers, and the Innocence Project. 4

Facts. "Because the defendant does not challenge the

sufficiency of the evidence at trial, we briefly summarize it,

reserving certain details" for later discussion of the alleged

errors. See Commonwealth v. Maldonado, 466 Mass. 742, 744,

cert. denied, 572 U.S. 1125 (2014).

Just before noon on August 30, 2020, the victim was stabbed

while outside a convenience store in New Bedford. Security

camera video footage showed the victim walking out of the store,

into the parking lot, and toward a minivan. The perpetrator

then jogged up to the victim, punched the victim, and jabbed his

arm towards the victim's groin area. After the attack, the

perpetrator jogged away, climbed into a dark-colored sport

utility vehicle (SUV), and drove out of the store parking lot.

The injured victim then got into the minivan and drove off.

Around the time of the attack, Maria Mattias and her

husband, Andrew Brum, the defendant's brother, were at their

home in New Bedford, along with their nephew, Carlos Santos.

Mattias and Santos were in the back yard when they saw the

victim enter the back yard, bleeding and stumbling.2 Blood was

2 The defendant's brother and his wife were familiar with the victim. The defendant's brother had worked with the victim as masons for several years and knew each other independent of the victim's relationship with the defendant. As discussed infra, the defendant and the victim had been roommates earlier that summer, but animosity had grown between them after the victim kicked the defendant out of that living situation. 5

dripping from the victim's waist and, before collapsing and

appearing to lose consciousness, he stated that he needed help.

While they waited for emergency services, Mattias discovered

that the victim was bleeding from a wound to his groin. The

minivan that the victim had driven to Mattias's and Brum's house

was still running, and the door was open.

Bizarro, the victim's girlfriend at the time, arrived at

Mattias's and Brum's home soon after medical personnel. Bizarro

appeared shocked, upset, and frantic. The victim was

transported to Rhode Island Hospital, where it was determined

that he had suffered four stab wounds: one to the groin, one to

his left leg, and two to his scrotum.

In the aftermath of the stabbing, New Bedford police

officers retrieved the convenience store's video surveillance

footage that showed the attack. The next day, a police officer

discovered a Ford Edge SUV parked one-half mile away from the

store that matched the description of the perpetrator's vehicle

as seen in the surveillance video footage. After police seized

the Ford Edge, they determined that it had been rented by the

defendant. They conducted deoxyribonucleic acid (DNA) tests on

the Ford Edge; the defendant's DNA, as well as that of from

three to five other potential contributors, was identified in 6

traces of occult blood3 in the Ford Edge. The victim's DNA did

not match any of the profiles.

In October 2020, Bizarro testified before a Bristol County

grand jury. She testified that she had known the defendant for

over fifteen years; they had grown up in the same area of New

Bedford, and Bizarro had gone to the same school as the

defendant and his brother. Additionally, she testified that the

defendant and the victim had been roommates that summer, and

that there was animosity between them because the defendant felt

that the victim had unfairly kicked the defendant out of their

apartment. Bizarro also testified that, although she did not

recognize the Ford Edge seized by police, she knew that the

defendant often drove rental cars.

Bizarro further testified that, on the day of the stabbing,

she had received a telephone call from the victim, where he

claimed that "DB stabbed me."4 She stated to the grand jury that

the victim sounded frantic and nervous on the telephone call,

and he was breathing heavily. Bizarro testified that on the day

after the stabbing, she had spoken with police officers at the

New Bedford police station, where she was shown the surveillance

3 Occult blood is blood not visible to the naked eye. See Commonwealth v. Marquetty, 416 Mass. 445, 446 (1993).

4 Bizarro testified that the victim referred to the defendant as "DB" and that she knew the defendant by this nickname. 7

video footage. Prior to viewing the footage, she had told

officers that she knew who had stabbed the victim and that it

was the defendant. Bizarro further testified that, after

viewing the footage at the police station, she told police that

she was "[p]ositive" that the defendant was the perpetrator.

When the surveillance video footage was played before the grand

jury, Bizarro testified that she was able to identify the

defendant from the video because of his "clothes," "hair," and

"by the way he[ was] walking," as the defendant "has a very

distinctive walk."

Later that month, the grand jury indicted the defendant on

a charge of assault and battery by means of a dangerous weapon,

in violation of G. L. c. 265, § 15A (b). The defendant filed

several pretrial motions concerning the anticipated evidence at

trial. Among those denied were motions to exclude the DNA test

results and to exclude Bizarro's grand jury testimony where she

identified the defendant from the surveillance video footage.

The judge reserved for trial the defendant's motion to exclude

Bizarro's grand jury testimony where she claimed that the victim

told her, "DB stabbed me."

The defendant was tried before a jury from June 22 to June

25, 2021. At trial, the judge conducted a voir dire of Bizarro

prior to her testimony to ascertain, pursuant to the

requirements in Daye, 393 Mass. at 75, whether Bizarro's grand 8

jury testimony was admissible substantively under the hearsay

exemption for prior inconsistent statements.5 See Mass. G. Evid.

§§ 104(a), 801(d)(1).6 During the voir dire, Bizarro recanted

extensive portions of her grand jury testimony. She denied her

prior recollections of the day of the stabbing and any

5 The voir dire of Bizarro was requested by defense counsel.

6 Section 104(a) of the Massachusetts Guide to Evidence provides:

"The court must decide any preliminary question about whether a witness is qualified or competent, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by the law of evidence, except that on privilege."

Section 801(d) provides in pertinent part:

"A statement that meets the following conditions is not hearsay:

"(1) A declarant-witness's prior statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement

"(A)(i) is inconsistent with the declarant's testimony; (ii) was made under oath before a grand jury . . . ; (iii) was not coerced; and (iv) is more than a mere confirmation or denial of an allegation by the interrogator; [or]

". . .

"(C) identifies a person as someone the declarant perceived earlier."

Here, although portions of Bizarro's grand jury testimony ostensibly contained statements of identification, the trial judge relied solely on the hearsay exemption for prior inconsistent statements in determining that the testimony was substantively admissible nonhearsay. 9

recollection of her interactions with police the day after the

stabbing, including her identification of the defendant from the

surveillance video footage. She likewise denied her

identification of the defendant before the grand jury. Finally,

she maintained that any statements she had given to police or in

her grand jury testimony were due to coercion by the victim, who

she claimed was abusing her at the time.

Based on his observations of Bizarro during the voir dire

and contradictions in her anticipated testimony, the judge made

the following findings: that there was opportunity to cross-

examine her at trial; that her prior statements were in her own

words and not coerced; and that she was feigning when she said

she was unable to recall various events. Based on those

findings, the judge allowed inconsistent portions of Bizarro's

grand jury testimony to be admitted for their truth. The judge

and counsel for each party then reviewed Bizarro's grand jury

testimony together to determine which portions had been recanted

and thus would be substantively admissible at trial. During

that process, defense counsel made contemporaneous objections to

the admission of various parts of Bizarro's grand jury

testimony.

Bizarro testified before the jury consistent with her voir

dire. Among other things, she recanted her identification of

the defendant from the surveillance video footage in the police 10

station and her grand jury testimony of that identification,

claiming that she did not recall seeing the surveillance video

footage at the police station. Instead, she claimed that she

could not tell the identity of the perpetrator from the footage,

and that the perpetrator "look[ed] like a random tall white guy"

who "could [have] be[en] anybody." When shown still images from

the video at trial, Bizarro remarked that she could not identify

the attacker as the defendant and that it was "a very poor

quality picture/video," a "horrible video." Bizarro testified

that she had only previously identified the perpetrator as the

defendant because the victim pressured her into doing so. The

trial judge then allowed the substantive admission of the

previously reviewed portions of her grand jury testimony and

instructed the jury accordingly.

The jury convicted the defendant of assault and battery by

means of a dangerous weapon, and the defendant was sentenced to

a term of from four to seven years in State prison. The

defendant timely appealed, and we granted his application for

direct appellate review.

Discussion. On appeal, the defendant challenges the trial

judge's substantive admission in evidence of portions of

Bizarro's grand jury testimony that she recanted at trial,

including her prior identifications of the defendant in the

surveillance video. The defendant also challenges admission of 11

portions of that grand jury testimony on independent evidentiary

grounds, including the presence of multilevel hearsay and lay

opinion testimony that he claims was improperly admitted. The

defendant also challenges the admission of testimony by a police

officer who identified the defendant's vehicle from its license

plate by "zooming in" on certain video footage; he challenges

the admission of DNA and occult blood evidence; and he asserts

reversible error arising from the prosecutor's closing argument.

Addressing each of these claims in turn, we conclude there is no

basis on which to reverse the defendant's conviction.

1. Standard of review. At trial, the defendant raised

timely objections to several of the errors now before us on

appeal. Where the defendant's objections were preserved, we

review for prejudicial error. See Commonwealth v. Gonsalves,

488 Mass. 827, 835 (2022). Where the defendant did not raise a

timely objection, we review the alleged errors to determine

whether they gave rise to a substantial risk of a miscarriage of

justice. See Commonwealth v. Davis, 487 Mass. 448, 464 (2021),

S.C., 491 Mass. 1011 (2023).

2. Substantive admission of Bizarro's grand jury testimony

as nonhearsay. a. Prior inconsistent statements. As a

preliminary matter, we agree with the trial judge that all the

admitted portions of Bizarro's grand jury testimony satisfied

the requirements of the hearsay exemption for prior inconsistent 12

statements made under oath, see Daye, 393 Mass. at 73-74; Mass

G. Evid. § 801(d)(1)(A). As noted supra, a prior inconsistent

statement of a declarant witness is substantively admissible

under Mass G. Evid. § 801(d)(1)(A), if the "declarant testifies

and is subject to cross-examination about a prior statement, and

the statement (i) is inconsistent with the declarant's

testimony; (ii) was made under oath before a grand jury . . . ;

(iii) was not coerced; and (iv) is more than a mere confirmation

or denial of an allegation by the interrogator." See note 6,

supra.

Here, upon making a preliminary determination that Bizarro

was feigning a lack of memory, the trial judge properly and

carefully reviewed Bizarro's grand jury testimony -- with the

assistance of counsel -- to determine which portions of that

testimony qualified as "inconsistent" statements for purposes of

the relevant hearsay exemption. See Commonwealth v. Sineiro,

432 Mass. 735, 742 (2000) (witness's claim of lack of memory

qualifies as "inconsistent" for purposes of Mass. G. Evid.

§ 801[d][1][A]). See also Mass G. Evid. §§ 104(a) (judge

decides preliminary questions), 801(d)(1)(A) (hearsay exemption

for prior inconsistent statements). The defendant does not

dispute this preliminary determination, nor does he dispute the

trial judge's further determinations that Bizarro was subject to

cross-examination, that the statements were made under oath 13

before a grand jury, and that the testimony was more than a mere

confirmation or denial. Rather, the defendant argues that the

testimony was inadmissible under Mass. G. Evid. § 801(d)(1)(A)

because (1) there was an insufficient showing that the

statements were "not coerced"; (2) the Commonwealth failed to

introduce evidence corroborative of the grand jury testimony;

and (3) the declarant (Bizarro) was not a percipient witness to

the crime, see Daye, 393 Mass. at 73 n.18. We discern no error.

With respect to potential coercion, the record reflects

that the judge conducted a careful and comprehensive voir dire

of Bizarro and found that her prior statements were voluntary,

and her lack of memory was feigned. Although Bizarro testified

to the abusive nature of her relationship with the victim,

including that he told her to say certain things to police, the

judge, as the fact finder, was not obligated to credit that

testimony in finding that Bizarro's previous statements were

made in her own words. See Commonwealth v. DePina, 476 Mass.

614, 622 (2017). Bizarro claimed to lack any memory of

previously identifying the defendant -- a claim which persisted

even when presented with video of her prior identification and

her signature and identifying marks on video still images.

Under those circumstances, it was not erroneous for the judge to

discredit Bizarro's voir dire testimony that she was either 14

unable to recall her prior identifications of the defendant or

had not made the identifications in the first place.

Second, the issue of corroborative evidence raised by the

defendant has no bearing on the admissibility of Bizarro's grand

jury testimony. We stated in Daye, 393 Mass. at 74-75, that the

Commonwealth must offer corroborative evidence where grand jury

testimony relates to an essential element of the offense.

However, we later clarified that such a requirement goes to the

separate question of the "sufficiency of the evidence rather

than to its admissibility." DePina, 476 Mass. at 621 n.5,

citing Commonwealth v. Clements, 436 Mass. 190, 193 (2002).

Because the defendant does not challenge the sufficiency of the

evidence, we decline to review it here and conclude that

Bizarro's grand jury testimony was admissible under the hearsay

exemption for prior inconsistent statements, irrespective of any

corroborative evidence.

Lastly, we address the defendant's claim that Bizarro's

testimony failed to meet the requirements of the hearsay

exemption for prior inconsistent statements because Bizarro was

not a percipient witness to the crime. For support, the

defendant points to a footnote in our opinion in Daye, 393 Mass.

at 73 n.18, which states:

"We predicate probative use of prior inconsistent statements on a showing that the declarant was a percipient witness to the events in question. If it is clear from the 15

context in which the statement was made that the statement was based on hearsay, rather than personal knowledge, the statement may not be admitted as probative evidence."

The initial sentence of the footnote seems to restrict the

use of prior inconsistent statements under Mass. G. Evid.

§ 801(d)(1)(A) to situations in which the declarant was a

"percipient witness" to the "events in question," but it does

not specify which events are the "events in question." The

sentence that follows, however, clarifies that the operative

distinction is whether the prior statement "was based on

hearsay, rather than personal knowledge." Per the footnote in

Daye, a prior inconsistent statement that is based on hearsay

"may not be admitted as probative evidence." In Daye itself,

the relevant prior inconsistent statement also was a statement

of identification, and the requirement of personal knowledge was

satisfied when the witness observed the defendant during the

commission of the crime. Daye, 383 Mass. at 73.

Nothing in Daye, however, or our subsequent case law limits

the substantive use of prior inconsistent statements to

circumstances where the testifying witness is present at the

scene of a crime. See, e.g., Commonwealth v. Trotto, 487 Mass.

708, 723-725 (2021) (witness's grand jury testimony detailing

conversation where defendant described circumstances of victim's

death was admissible as prior inconsistent statements, despite

witness's absence at scene); DePina, 476 Mass. at 621-623 16

(witness's grand jury testimony describing her seeing

defendants' possession of handgun prior to shooting admissible,

despite witness not being present at shooting); Commonwealth v.

Noble, 417 Mass. 341, 347 (1994) (witness's grand jury testimony

pertaining to codefendant's conversation of crime substantively

admissible when witness was percipient witness to the

conversation, not the crime); Commonwealth v. Carrasquillo, 54

Mass. App. Ct. 363, 366, 370-371 (2002) (victim's statement of

identification of defendant as shooter partially based on

childhood spent together).

The defendant asks us to interpret the footnote in Daye in

a manner that would confound the current practice of courts and

counsel, see, e.g., Trotto, 487 Mass. at 723-725, when

considering the admissibility of prior inconsistent statements.

We decline to do so. Moreover, it is clear from the context of

Daye that the limitation discussed in footnote 18 applied only

to prior inconsistent statements of identification, not prior

inconsistent statements in general. As discussed infra, our

treatment of statements of identification has evolved

significantly since that opinion. See part 2.b, infra. See

also Cong Duc Le, 444 Mass. at 437-441; Mass. G. Evid.

§ 801(d)(1)(C) note.

b. Statements of identification. Although this basis was

not addressed by the trial judge, we note that the portions of 17

Bizarro's grand jury testimony where she identified the

defendant in the surveillance video were independently

admissible for their truth as nonhearsay under the exemption for

prior statements of identification. See Cong Duc Le, 444 Mass.

at 437-441; Mass. G. Evid. § 801(d)(1)(C). The defendant moved

in limine to exclude this evidence and renewed his objection at

trial; therefore, we review for prejudicial error. See

Gonsalves, 488 Mass. at 836.

The admissibility of prior statements of identification is

governed by the principles set forth in Cong Duc Le, 444 Mass.

at 436-437 (adopting Proposed Mass. R. Evid. § 801[d][1][C], and

overruling Daye as to "limitations . . . placed on the use of

extrajudicial identification evidence"). The defendant's

primary argument regarding these statements echoes his argument

concerning percipience and Daye addressed in part 2.a, supra:

because our jurisprudence limits the substantive admission of

prior statements of identification to identifications made by a

percipient witness and not those contained in lay opinion

testimony of a nonpercipient witness, Bizarro's identifications

are inadmissible on these grounds. The defendant first seeks

support for this argument in the language of Cong Duc Le itself,

namely, its requirement that the prior statement be "one of

identification of a person [made] after perceiving him"

(emphasis added). See Cong Dug Le, supra; Mass. G. Evid. 18

§ 801(d)(1)(C) (to be admissible under this subsection,

statement must "identif[y] a person as someone the declarant

perceived earlier"). The defendant contends that the verb

"perceive," as used in Cong Duc Le and Mass. G. Evid.

§ 801(d)(1)(C), is limited to perception of the person who is

the subject of the identification during the commission of the

crime.

We disagree, as the rule we adopted in Cong Duc Le contains

no such restriction. Instead, the requirement that a statement

be "one of identification of a person [made] after perceiving

him" refers only to the fact that the declarant's basis for the

identification must be personal knowledge, not hearsay. In Cong

Duc Le, 444 Mass. at 433, that personal knowledge arose from

declarant's perception of the defendants during the commission

of the crime, as well as his personal history with the

defendants. This requirement may be also satisfied where the

sole basis for the declarant's identification is years of

acquaintance with -- and perception of -- the subject, as

Bizarro's was here. See Commonwealth v. Raedy, 68 Mass. App.

Ct. 440, 449 n.14 (2007) ("perceive" language in § 801(d)(1)(C)

"focuses on the nature of the statement . . . identifying the

person after the declarant has perceived that person," without

limiting basis of perception). 19

Our precedent considering witness identifications more

generally supports this understanding. We have held that "[t]he

probative value of [an] identification depends on the strength

of its source." Commonwealth v. Johnson, 473 Mass. 594, 601

(2016) (considering fairness of out-of-court identifications).

The strength of an identification's independent source is

determined by different factors, including the "witness's prior

familiarity with the person identified, where that person is a

witness's family member, friend, or long-time acquaintance."

Id. at 601-602. As such, a witness's "long and close

relationship" with the identified subject and "considerable

familiarity" with the subject's physical characteristics may

very well make an identification more reliable than "a 'single'

or 'brief' exposure to a suspect in frightening conditions"

immediately after the commission of a crime. See Commonwealth

v. Vasquez, 482 Mass. 850, 861 (2019), quoting Commonwealth v.

Chamberlin, 86 Mass. App. Ct. 705, 713 (2014). Cf. Commonwealth

v. Crayton, 470 Mass. 228, 242 (2014) (eyewitness's familiarity

with defendant prior to crime "good reason" to allow in-court

showup as initial identification procedure). "When such

familiarity is present," even without presence at the scene of a

crime, "those witnesses may be able to discern identifying

characteristics that others could not, rendering their visual 20

identifications, in some circumstances, less unreliable."

Vasquez, supra.

Turning to Mass. G. Evid. § 801(d)(1)(C), which "has its

origins in our common law of evidence," Commonwealth v. Adams,

458 Mass. 766, 771 (2011), we note that appellate courts'

consideration of out-of-court identifications focus on the

reliability of the basis of the identification, rather than the

identifying witness's presence at the criminal activity. For

example, in Adams, supra at 771, we held the admission of out-

of-court identifications was not limited to formal

identification procedures, as an identifying witness who

"kn[ows] the defendant well," like the defendant's brother, was

a "more reliable pretrial statement of identification" than "a

witness's selection of a photograph of someone he does not

know." Our common-law prioritization of an identification's

reliability over the form of how that reliability is achieved is

especially relevant for Mass. G. Evid. § 801(d)(1)(C), which

exempts statements from categorization as unreliable hearsay.

We note finally that our interpretation of the current rule

as adopted in Cong Duc Le is entirely consistent with the

footnote in Daye as it pertains to Mass. G. Evid.

§ 801(d)(1)(A), discussed supra. In sum, neither Cong Duc Le

nor Daye (as modified in Cong Duc Le) requires that a prior

statement of identification or a prior inconsistent statement 21

made under oath be based on a witness's perception of the

individual during the commission of the crime.

3. Other challenges to admissibility of Bizarro's grand

jury testimony. In addition to raising the threshold issue of

whether the entirety of Bizarro's grand jury testimony is

admissible nonhearsay under Mass. G. Evid. § 801(d)(1)(A), the

defendant argues that specific portions of the grand jury

testimony were inadmissible on other evidentiary grounds.

a. Lay opinion testimony identifying defendant in

surveillance video. The defendant contends that Bizarro's grand

jury testimony identifying the defendant from the video footage

was inadmissible lay opinion testimony because it was "not

helpful" to the jury, see Commonwealth v. Pleas, 49 Mass. App.

Ct. 321, 325 (2000), and any probative value was outweighed by

its prejudicial effect, see Commonwealth v. Wardsworth, 482

Mass. 454, 477 (2019).

A "witness's opinion concerning the identity of a person

depicted in a surveillance [video] is admissible if there is

some basis for concluding that the witness is more likely to

correctly identify the defendant from the photograph [or video]

than is the jury." Commonwealth v. Vacher, 469 Mass. 425, 441

(2014), quoting Pleas, 49 Mass. App. Ct. at 326. "Put another

way, such testimony is admissible . . . when the witness

possesses sufficiently relevant familiarity with the defendant 22

that the jury cannot also possess" (quotation omitted). Vacher,

supra, quoting Pleas, supra at 326-327.

In denying the defendant's pretrial motion to exclude this

portion of Bizarro's grand jury testimony, the trial judge

reviewed the video footage and determined "that the

identification testimony of one with some familiarity with the

defendant would be helpful to the jury." The judge elsewhere

noted that the surveillance video footage was not excellent

quality, but also was not "hopelessly obscure"; the footage

showed a sunny day, with minimal blur. See Pleas, 49 Mass. App.

Ct. at 325. Additionally, the judge was presented with facts

that Bizarro knew the defendant since middle school and that the

defendant recently had been her boyfriend's roommate. See

Vasquez, 482 Mass. at 861 (witnesses had long relationship with

defendant as basis for video identification). Bizarro also

testified before the grand jury that she had been able to

identify the defendant from the surveillance video by "his

clothes, by the way he's walking, . . . everything." See id.

(witnesses had familiarity with defendant's "stature, gait,

appearance, clothing, and features"). Even though both the jury

and Bizarro were able to view the same surveillance footage,

Bizarro was "specifically familiar with the defendant, such that

[she] could provide special insight into his appearance." Cf.

Wardsworth, 482 Mass. at 476 (opinion identification testimony 23

from officers with no independent familiarity of defendant

prejudiced defendant). In these circumstances, the judge did

not abuse his discretion in determining that Bizarro's testimony

had a proper foundation and would be helpful to the jurors, who

had the video and still images from the video before them.

Nor are we persuaded by the defendant's alternative

argument that, even if the testimony met the requirements for

admission of lay opinion testimony, the probative value of the

evidence was substantially outweighed by its prejudicial effect

where Bizarro recanted the testimony at trial. Appellate courts

reviewing the admission of lay opinion identification from a

video only require that there be "some basis for concluding that

the witness is more likely to correctly identify the defendant

from the [video] than is the jury." Vacher, 469 Mass. at 441,

quoting Pleas, 49 Mass. App. Ct. at 326. The purpose of

requiring such a foundation for lay opinion testimony is so the

jury have enough information to allow them to "conduct an

independent assessment of the accuracy and reliability of [the

witness's] identifications." Commonwealth v. Connolly, 91 Mass.

App. Ct. 580, 592-593 (2017). If subsequent testimony calls

into question the "accuracy and reliability" of a witness's

identification, that is a matter for the jury to resolve, not

the judge. See id. This is especially the case for statements

of identification that fall under Mass. G. Evid. § 801(d)(1)(C), 24

which contemplates scenarios where the jury are "confronted with

disputed testimony concerning identification." Cong Duc Le, 444

Mass. at 439-440. Rather than prejudice the defendant, the fact

that a prior identification is disputed is helpful to the jury

"in evaluating the over-all evidence as to whether the defendant

on trial was the one who committed the charged offense." Id. at

440-441. This is so even when a prior identification is self-

disputed, as Bizarro's was here.

b. Multilevel hearsay. The defendant argues that a

statement made by the victim to Bizarro -- "DB stabbed me" --

and introduced through Bizarro's grand jury testimony should

have been excluded under Daye as multilevel hearsay, because the

declarant of the underlying statement was unavailable for cross-

examination. Because the defendant objected before and at

trial, we review the admission of this statement for prejudicial

error. See Gonsalves, 488 Mass. at 835. Finding none, we

conclude that the defendant's argument is without merit.

Multilevel hearsay is admissible "only if each of the

multiple hearsay statements falls within an exception to the

hearsay rule." DePina, 476 Mass. at 623, citing Commonwealth v.

Gil, 393 Mass. 204, 218 (1984); Mass. G. Evid. § 805 (2023). As

discussed supra, the first layer of statements challenged as

multilevel hearsay -- Bizarro's statement to the grand jury,

which she recanted at trial -- is nonhearsay and admissible for 25

its substance as a prior inconsistent statement of a declarant

witness. See Mass. G. Evid. § 801(d)(1)(A). The defendant's

assertion that this statement is inadmissible because the victim

was not available for cross-examination at trial, in

contradiction of the requirements in Daye, rests on a

misapplication of the rule. Because it is Bizarro's statement

that is of concern under Mass. G. Evid. § 801(d)(1)(A), Bizarro

is the declarant who must be, and was, available for cross-

examination at trial. As explained infra, the underlying

statement of the victim -- "DB stabbed me" -- that Bizarro

repeated in her testimony is separately admissible as a

spontaneous utterance. Thus, cross-examination of the victim,

as the declarant of that underlying statement, was not required

for it to be admitted, unless that underlying statement violated

the confrontation clause of the Sixth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration

of Rights.

"Out-of-court statements offered for the truth of the

matter and asserted by a declarant who does not testify at trial

must pass two 'distinct but symbiotic' tests to be admitted."

Commonwealth v. Rand, 487 Mass. 811, 815 (2021), quoting United

States v. Brito, 427 F.3d 53, 60 (1st Cir. 2005), cert. denied,

548 U.S. 926 (2006). "First, the statement must be admissible

under our common-law rules of evidence as an exception [or 26

exemption] to the hearsay rule." Rand, supra, quoting

Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011). "Second,

the statement must be nontestimonial for purposes of the

confrontation clause of the Sixth Amendment." Rand, supra,

quoting Beatrice, supra.

The victim's statement that "DB stabbed me" is admissible

under the spontaneous utterance exception to the hearsay rule.

In reviewing whether an out-of-court statement comes within this

exception, courts consider "whether there was an exciting event

that would give rise to the exception," and then "whether the

declarant displayed a degree of excitement sufficient to

conclude that [the] statement was a spontaneous reaction to the

exciting event, rather than the product of reflective thought."

See Commonwealth v. Santiago, 437 Mass. 620, 624-625 (2002).

Here, it is beyond dispute that being stabbed multiple times in

the groin and scrotum constitutes an exciting event. See

Commonwealth v. Nesbitt, 452 Mass. 236, 246 (2008) (stabbing

qualifies as exciting event). After being attacked, the victim

drove away from the scene while bleeding. He then stumbled into

the back yard of acquaintances to seek help and care, leaving

the engine of the car he had driven there still running and the

door open. On the telephone with Bizarro, when he gave the

statement, the victim sounded "flustered." Soon after, the

victim nearly lost consciousness and had to be transported 27

directly to an out-of-State hospital due to the severity of his

injuries. It was unlikely that the circumstances facing the

victim at that time were conducive to dispassionate, reflective

thought.

The victim's statement also was nontestimonial.

"Testimonial statements are those made with the primary purpose

of 'creating an out-of-court substitute for trial testimony.'"

Commonwealth v. McGann, 484 Mass. 312, 316 (2020), quoting

Wardsworth, 482 Mass. at 464. "The inquiry is objective, asking

not what that particular declarant intended, but rather 'the

primary purpose that a reasonable person would have ascribed to

the statement, taking into account all of the surrounding

circumstances.'" Commonwealth v. Imbert, 479 Mass. 575, 580

(2018), quoting Williams v. Illinois, 567 U.S. 50, 84 (2012).

The victim's statement, taken together with the rest of his

statements to Bizarro and his demeanor on the call, evinces that

he was attempting to seek aid and have his girlfriend join him

in a medical emergency. See Rand, 487 Mass. at 817 ("when

preoccupied by an ongoing emergency, a victim is unlikely to

have the presence of mind to create a substitute for trial

testimony"). The victim sounded frantic and nervous on the

telephone call to Bizarro just after being attacked while en

route to the house of an acquaintance to get help. See McGann,

484 Mass. at 318 (victim's "hysterical" statements to mother on 28

telephone calls after violent attack were nontestimonial).

Again, almost immediately after getting to the home, with blood

dripping from his waist, the victim collapsed and appeared to

lose consciousness. Given the circumstances, the victim's

statement does not demonstrate an intent to create a substitute

for trial testimony, see Rand, supra, and the judge did not err

in admitting it.

c. Other portions of grand jury testimony. The defendant

also contends that three other specific portions of Bizarro's

grand jury testimony should have been excluded because they were

speculative, lacked proper foundation, and contained

inadmissible hearsay: her statement to police that she "knew

who it was" who stabbed the victim, namely, the defendant; her

statements to police that that she "knew" the defendant was

driving a rental car on the date of the attack, "because he gets

them often"; and her statements to police concerning the

animosity between the defendant and victim as the defendant's

motive for the attack. Having reviewed the defendant's

arguments and the record, consisting of Bizarro's grand jury

testimony, her voir dire at trial, and her trial testimony, we

conclude that any error in the admission of these statements did

not create a substantial likelihood of a miscarriage of justice.

See Commonwealth v. Desiderio, 491 Mass. 809, 817 (2023). 29

Bizarro's statements that she knew who the attacker was and

that she knew the defendant was driving a rental car based on

habit were cumulative of other, more powerful and properly

admitted testimony; namely, the victim's statement that "DB

stabbed me," see part 3.b, supra, and evidence of the

defendant's rental car agreement, see part 5, infra. See

DePina, 476 Mass. at 623-624.7

And while the portion of Bizarro's grand jury testimony

concerning animosity between the defendant and victim lacked

adequate foundation, its admission did not create a likelihood

of a miscarriage of justice. See Commonwealth v. Moffat, 486

Mass. 193, 200 (2020) ("Lay witnesses may only testify regarding

matters within their personal knowledge"). Bizarro testified to

the grand jury that she thought the defendant and victim had a

falling out because the victim told the defendant that they

could no longer be roommates; she "wasn't there" to see the

defendant's reaction, but she "kn[e]w that they argued" and that

the victim had not been answering the defendant's telephone

calls for a while. Earlier before the grand jury, Bizarro

7 We note that our current law prohibits the use of evidence of an individual person's habit to prove action in conformity with that habit, see Commonwealth v. Wilson, 443 Mass. 122, 138 (2004); Mass. G. Evid. § 406(b) (2023). This case law is not in line with the Federal Rules of Evidence, see Fed. R. Evid. § 406. Nonetheless, we leave the consideration of our treatment of habit evidence for another day. 30

testified that she knew the defendant and victim had been

roommates for about two months in the summer of 2020, but the

Commonwealth did not elicit, either before the grand jury or at

trial, foundational details regarding how Bizarro came to know

of the disagreement between the two men.

While the prosecutor touched upon Bizarro's grand jury

testimony regarding motive in his closing argument -- stating

that the jury had "heard . . . as to why [the victim] was

stabbed" and that it was due to the "falling out" -- he also

mentioned that the jury were instructed to scrutinize Bizarro's

testimony as an immunized witness, and that motive was not an

element of the crime. Given that at trial, Bizarro directly

contradicted this portion of her grand jury testimony, and that

the prosecutor did not overly rely on this portion of Bizarro's

testimony in making his case to the jury, we cannot say it

substantially risked a miscarriage of justice to have the jury

weigh these statements. See DePina, 476 Mass. at 624-625.

4. Direct examination of Bizarro regarding her professed

motivation to lie. At trial, when the Commonwealth asked

Bizarro about her previous identification of the defendant

during her grand jury testimony, where she had signed her

initials on still images of the surveillance video footage,

Bizarro responded that she was "doing what [she] was told by

[the victim]." The defendant objected to this answer and moved 31

to strike Bizarro's response, which was overruled. The

Commonwealth continued to ask Bizarro about whom she had

identified in the still images from the surveillance video

footage; Bizarro responded that she "was told to say that it was

[the defendant]," which the defendant did not object to. On

appeal, the defendant maintains that all of Bizarro's statements

to that effect were hearsay that "had no proper purpose in

advancing the Commonwealth's case," and even if properly

admitted, risked unfair prejudice to the defendant. See

Gonsalves, 488 Mass. at 835.

"An out-of-court statement introduced to impeach a witness,

and not to prove the truth of the matter asserted, is not

hearsay." Commonwealth v. Schoener, 491 Mass. 706, 729 (2023),

citing Commonwealth v. Denson, 489 Mass. 138, 149 (2022).

Parties may impeach their own witnesses, see Mass. G. Evid.

§ 607 (2023), including via prior inconsistent statements, so

long as a proper foundation is made. See Commonwealth v.

McAfee, 430 Mass. 483, 489-490 (1999), citing G. L. c. 233,

§ 23.

Here, the Commonwealth's line of questioning was

permissible as a means of impeaching Bizarro, as it invited

comparison of the inconsistencies between Bizarro's trial and

grand jury testimonies, exposing her lack of credibility as a

trial witness. See Sineiro, 432 Mass. at 742. The 32

Commonwealth's questions -- and Bizarro's responses --

juxtaposed Bizarro's inability to recall anything incriminating

she had previously said about the defendant, with her only

remaining memory: that of the victim's supposed coercion. The

judge did not err in allowing the Commonwealth to ask questions

that permitted the jury to "hear all of [Bizarro's] version of

events" while deciding whether her testimony at trial or her

testimony to the grand jury was the truth. Id. at 743. See

Clements, 436 Mass. at 195 (determination of reliability of

pretrial identification versus in-court disavowal is matter for

jury); Daye, 393 Mass. at 73-74 (jury may use their "common

sense" to weigh probative worth of identification, given their

observation of witness and her "rejection on the stand of [her]

prior statement").

Although no limiting instruction was provided for this

impeachment evidence, the defendant did not request one, and

there likely was no prejudice to the defendant from the

admission of the statements.8 See Commonwealth v. Lester, 486

8 Prior to Bizarro's testimony at trial, the defendant had requested "contemporaneous" instructions on the use of prior inconsistent statements for impeachment purposes. Immediately prior to Bizarro's in-court testimony, the judge proceeded to give general instructions that the jury should limit the use of any prior inconsistent statements to consideration of a witness's credibility. During Bizarro's direct examination, the defendant did not request limiting instructions in response to the Commonwealth's questions or Bizarro's answers. Prior to 33

Mass. 239, 253 (2020) (party concerned about purpose for which

impeachment testimony is admitted has burden of requesting

appropriate instruction at time statement is admitted). This is

because, if Bizarro's answers were considered substantively by

the jury, they arguably would be helpful to the defendant.

Indeed, Bizarro's trial testimony indicated that her prior

identifications of the defendant were made, at the very least,

due to the victim's suggestions, if not his directives to

outright lie. If those answers were accepted for their truth by

the jury, the defendant was not harmed, but arguably was helped

by them. See Maldonado, 466 Mass. at 759. Moreover, the

prosecutor's closing remarks invited the jury to "throw Ms.

Bizarro's testimony out the window," and nothing elsewhere in

the record indicated that either party wished the jury to

consider these statements for their truth. See Commonwealth v.

Charles, 397 Mass. 1, 7 (1986). "[W]e are substantially

confident that, if the error had not been made, the jury verdict

would have been the same." Maldonado, supra, quoting

Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998).

5. License plate testimony. At trial, a detective

testified to the process used by police in identifying the SUV

Bizarro's grand jury testimony being read in evidence, the court gave updated instructions to the jury that they could consider Bizarro's grand jury testimony for its substance. 34

seen in the surveillance video footage as the Ford Edge rented

by the defendant. During that testimony, the detective

indicated that he identified the license plate on the SUV in the

surveillance video footage as being from Florida, the same State

as the license plate on the defendant's rented Ford Edge. The

detective was able to identify the State of the SUV's license

plate in the video by "zooming in" on the video (close-up video)

and examining the license plate's characteristics closely.

Because the defendant did not object to the detective's

testimony at trial, we review its admission to determine whether

it created a substantial risk of a miscarriage of justice.

Commonwealth v. Grady, 474 Mass. 715, 721-722 (2016).

On appeal, the defendant argues that the Commonwealth

failed to lay a proper foundation for this portion of the

detective's testimony. Additionally, the defendant maintains

that the detective's testimony was unduly prejudicial and had

limited probative value, because the jury did not have the

close-up video images of the license plate before them.

As a condition of admissibility, the Commonwealth had to

lay a sufficient foundation to demonstrate that a reasonable

jury could find by a preponderance of the evidence that the

close-up video was a genuine representation of what the

detective claimed it to be; here, that foundational requirement

would have been met by testimony from the detective describing 35

how the video footage was able to display indicators of the

Florida license plate. See Connolly, 91 Mass. App. Ct. at 587.

The Commonwealth failed to do so; foundational details were

admitted only upon cross-examination of the detective.

While we agree that the officer's testimony lacked a proper

foundation, it nevertheless did not give rise to a substantial

risk of a miscarriage of justice. The jury here had before them

several pieces of evidence that were probative of a comparison

between the defendant's Ford Edge and the SUV in the

surveillance video footage, independent of the detective's

testimony concerning the license plate. Cf. Connolly, 91 Mass.

App. Ct. at 592-593 (defendant prejudiced by officer's testimony

concerning unavailable surveillance video, which served as only

substantive evidence of alleged crime). For instance, the

surveillance footage video and still prints of both vehicles

were entered in evidence, indicating other distinguishing marks

that the jury could compare for themselves, such as the emblems

on the front grills and stickers on the front windshields of the

vehicles. The defendant's rental agreement and a stipulation by

the defendant that he had rented the Ford Edge SUV were also

before the jury. Additionally, the lay opinion testimony

concerning the close-up video was not extensive. Cf.

Wardsworth, 482 Mass. at 476-477 (four officers' extensive lay

opinion testimony on video evidence contributed to improper 36

prejudice). The jury were able to "conduct an independent

assessment of the accuracy and reliability" of the detective's

testimony about the license plate based on the evidence before

them. See Connolly, supra at 593. Any harm to the defendant

was therefore mitigated. See Vacher, 469 Mass. at 442

(erroneous admission of identification testimony harmless

because "jury were capable of drawing the same conclusion" from

photographs in evidence).

6. DNA and occult blood evidence. The defendant argues

that the judge erred in admitting DNA and occult blood evidence

gathered from his rented Ford Edge, as the results of the

forensic tests were inconclusive and bore little relevance to

issues in the case. In denying the defendant's motion in limine

to exclude the results, the judge ruled that the presence of the

defendant's DNA in the rented vehicle was probative of the

Commonwealth's theory that the defendant fled the stabbing in

the vehicle.

At trial, the defendant consistently challenged the

adequacy, thoroughness, and effort of the police investigation

in opening and closing statements, as well in cross-examination

of witnesses. In particular, the defendant focused on a knife

that had been present at the scene and had subsequently gone

missing, rendering it unavailable for forensic testing, and the

perceived failure of police to gather global positioning system 37

and cell site location information. When faced with

insinuations, the prosecution was entitled to introduce

testimony to demonstrate that forensic analysis, including DNA

testing, was performed, and that results, even inconclusive

ones, were obtained, as was the case here. See Commonwealth v.

Barnett, 482 Mass. 632, 639 (2019), citing Commonwealth v.

Mathews, 450 Mass. 858, 872 (2008) (inconclusive DNA results

admissible where defense calls into question integrity of police

investigation). The admission of this evidence was not error.

See Gonsalves, 488 Mass. at 835.

7. Prosecutor's closing argument. The defendant contends

that the prosecutor's direction in his closing argument that the

jury should rely on the surveillance video footage was improper.

See Davis, 487 Mass. at 467. In the absence of an objection, we

review for a substantial risk of a miscarriage of justice. Id.

In his closing, the prosecutor stated that the jury could

rely on the surveillance video footage, and that from the

footage the jury could discern characteristics of the

perpetrator to determine that the defendant was the perpetrator.

Specifically, the prosecution described the video as "rock-

solid," "a beautiful video . . . where you see [the defendant]

and his skinny build, and his precise hairline, his round hair,

his white skin"; "Who do you see in the video? You see [the

defendant]. . . . I suggest to you it is [the defendant] in the 38

video." "Although not dispositive, we consider the fact that

the defendant did not object to the statements at trial as 'some

indication that the tone [and] manner . . . of the now

challenged aspects of the prosecutor's argument" did not create

a substantial risk of a miscarriage of justice. Commonwealth v.

Barbosa, 477 Mass. 658, 669 (2017), quoting Commonwealth v.

Lyons, 426 Mass. 466, 471 (1998). See Commonwealth v. Kozubal,

488 Mass. 575, 590 (2021), cert. denied, 142 S. Ct. 2723 (2022).

"[C]losing arguments must be viewed in the context of the

entire argument, and in light of the judge's instruction to the

jury, and the evidence at trial" (quotation and citation

omitted). Barbosa, 477 Mass. at 670. A prosecutor's closing

argument may be based on "inferences that may reasonably be

drawn from the evidence." Commonwealth v. Lewis, 465 Mass. 119,

129 (2013), quoting Commonwealth v. Kozec, 399 Mass. 514, 516

(1987). A prosecutor can encourage the jury to use their

observations to aid them in reaching their verdict. See

Barbosa, supra. The prosecutor may also make remarks that

amount to "enthusiastic rhetoric, strong advocacy, and excusable

hyperbole" (citation omitted). Lyons, 426 Mass. at 472. If

statements fall within this permissible rhetoric, they do not

cross the line between fair and improper argument. See id.

The closing argument here is distinguishable from the

opening statement at issue in Davis. In Davis, 487 Mass. at 39

469, the prosecutor told the jury in the Commonwealth's opening

that they would be able to identify the perpetrator as the

defendant based on grainy video of an individual that only

showed that the individual was a Black man with long hair in

braids or dreadlocks. The court held that the prosecutor's

suggestion that the jury could identify the defendant based on

the video was unreasonable, as the video's low resolution and

distance from the shooter did not allow the jury to discern any

features of the perpetrator's face. Id., citing Vasquez, 482

Mass. at 861.

Here, the prosecutor's remarks, while hyperbolic at times,

did not create a substantial risk of a miscarriage of justice.

The surveillance footage at issue here is of a quality such that

facial features are discernable at times in addition to other

physical characteristics, unlike the footage in Davis. The

video here is also of relatively high resolution, not

"hopelessly obscure." Given the circumstances of this specific

video footage, the prosecutor's encouragement of the jury to

identify the defendant from the video procedure was reasonable

and did not amount to a substantial risk of a miscarriage of

justice. Cf. Davis, 487 Mass. at 469.

Further, in discussing the video, the prosecutor informed

the jury that they could not base any conviction on the video

alone but had to consider the entire investigation and body of 40

evidence. See Davis, 487 Mass. at 467-468 & n.25 (no error when

prosecutor did not state jury could identify defendant from

video alone). The prosecutor pointed out that the evidence

included Bizarro's conflicting testimony regarding her

perceptions of the video and her ability to identify the

defendant in it, and whether Bizarro's testimony should be

credited was for the jury to decide. See Commonwealth v.

Holiday, 349 Mass. 126, 129 (1965) (acceptance or rejection of

oral testimony is exclusive province of jury). The prosecutor's

encouragement to the jury to weigh Bizarro's credibility and

examine the surveillance video footage was not unreasonable.

See Davis, 487 Mass. at 467; Barbosa, 477 Mass. at 670

(prosecutor properly encouraged jury to use observations to

evaluate evidence in reaching verdict).

Conclusion. Finding that none of the alleged errors

warrant relief, we affirm the defendant's conviction.

Judgment affirmed.