NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-113
COMMONWEALTH
vs.
BRUNO LOPES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
malicious destruction of property exceeding $1,200 in value and
two firearms offenses; he was found not guilty of two other
charges. This appeal concerns only the conviction for malicious
destruction of property.1 The defendant claims error in the
admission at trial of (1) a detective's identification of the
defendant on surveillance videos and (2) a witness's statement
that she had purchased drugs from the defendant. We affirm.
1. Identification. The defendant was identified through
various surveillance videos (submitted in evidence and reviewed
1By agreement, the defendant's motion for a new trial on the firearms offenses under Commonwealth v. Guardado, 493 Mass. 1 (2023), was allowed. by the panel) and the testimony of eyewitnesses. He challenges
Detective Dacunha's identification of him on video clips entered
in evidence.
The decision to admit witness identification testimony is
committed to the discretion of the trial judge. See
Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328 (2000).
Because Dacunha's identification was the subject of pretrial
motion practice, the defendant's objection was preserved and we
review any error under the prejudicial error standard.
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). "This requires
a two-part analysis: (1) was there error; and (2) if so, was
that error prejudicial." Id. "An error is not prejudicial if
it 'did not influence the jury, or had but very slight effect.'"
Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994).
"Making a determination of the identity of a person from a
photograph or video image is an expression of an opinion."
Commonwealth v. Pina, 481 Mass. 413, 429 (2019). "The general
rule is that a witness's opinion concerning the identity of a
person depicted in a surveillance photograph is admissible if
there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph
than is the jury." Id. at 429-430, quoting Commonwealth v.
2 Vacher, 469 Mass. 425, 441 (2014). "Put another way, such
testimony is admissible . . . when the witness possesses
sufficient relevant familiarity with the defendant that the jury
cannot also possess." Pina, supra, at 430, quoting Vacher,
supra.
The judge allowed the Commonwealth's motion in limine to
admit Dacunha's testimony after an evidentiary hearing at which
Dacunha testified. She determined that the Commonwealth had met
its burden under Pina based on Dacunha's testimony that he had
"known [the defendant] for years, based upon interactions as
part of his duties as a sort of a community officer and is
familiar with the defendant having come into contact with him
over a hundred times."
The defendant does not contest that Dacunha's long
acquaintance with the defendant (including his familiarity with
the defendant's voice) provided "sufficient relevant familiarity
with the defendant that the jury cannot also possess," Pina, 481
Mass. at 430, quoting Vacher, 469 Mass. at 441, rendering
Dacunha qualified to identify the defendant. Rather, he asserts
that the videos ("poor" and "grainy") are "hopelessly obscure"
and not appropriate for an identification (citation omitted).
Pleas, 49 Mass. App. Ct. at 325. We are not persuaded. We
focus, as did counsel, on clips in exhibit 5 (South Second
3 Street sequence).2 Having reviewed the relevant video, we do not
agree that its quality was too poor to allow for the
identification.
The video clips in the South Second Street sequence are
clear. One can read the words "school bus" on a placard on the
roof of a van by which the defendant pauses to pull a light-
colored shirt over his naked torso before continuing at a jog
down the block. On an earlier clip that shows the defendant
walking shirtless from a driveway onto the sidewalk, the image
is sufficiently clear that the defendant's pectoral muscles are
visible. Because of distance, the defendant's facial features
are not easily visible, but his "body type and hairstyle" are
visible, adequately supporting Dacunha's identification.
Furthermore, Dacunha's identification of the defendant in
this sequence did not stand alone. A witness who had known the
2 As to the first video sequence (exhibit 2, the Monte's Park sequence), any error in admitting Dacunha's testimony was not prejudicial because other witnesses also placed the defendant at the scene. The defendant's girlfriend testified that she was with the defendant and Aaliyah Martin on the night of the shooting, although she did not remember where they went. She identified herself getting out of a car at Monte's Park, identified her voice and Ms. Martin's voice, and tentatively identified the defendant's voice. Ms. Martin confirmed that she was with the defendant's girlfriend at Monte's Park that night, although she did not remember whether the defendant was with them. The defendant does not contest Dacunha's identification of the defendant's voice saying "Louie" and "Aziza" on later clips in exhibit 2.
4 defendant for "a few years" and had previously been in a
romantic relationship with him described seeing him on the other
side of Margin Street, making eye contact with him, then
watching him cross to her side of the street. Watching a video
clip from Margin Street (a few minutes after the South Second
Street sequence), she identified herself and her brother and
agreed that a figure that "appeared to be" the defendant crossed
the street, mirroring the "scenario" she had described. We
discern no prejudicial error in the admission of Dacunha's
testimony.
2. Challenged testimony about drug purchases. The
defendant also challenges testimony by an acquaintance that she
"used to buy drugs off of him." This testimony was immediately
stricken upon objection, with the judge telling the jury, "It's
stricken from the record." The defendant moved for a mistrial,
which was denied. We review for abuse of discretion. See
Commonwealth v. Mullane, 445 Mass. 702, 711 (2006).
"A trial judge is in the best position to determine whether
a mistrial, an extreme measure available to a trial judge to
address error, is necessary, or whether a less drastic measure,
such as a curative instruction, is adequate." Commonwealth v.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-113
COMMONWEALTH
vs.
BRUNO LOPES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
malicious destruction of property exceeding $1,200 in value and
two firearms offenses; he was found not guilty of two other
charges. This appeal concerns only the conviction for malicious
destruction of property.1 The defendant claims error in the
admission at trial of (1) a detective's identification of the
defendant on surveillance videos and (2) a witness's statement
that she had purchased drugs from the defendant. We affirm.
1. Identification. The defendant was identified through
various surveillance videos (submitted in evidence and reviewed
1By agreement, the defendant's motion for a new trial on the firearms offenses under Commonwealth v. Guardado, 493 Mass. 1 (2023), was allowed. by the panel) and the testimony of eyewitnesses. He challenges
Detective Dacunha's identification of him on video clips entered
in evidence.
The decision to admit witness identification testimony is
committed to the discretion of the trial judge. See
Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328 (2000).
Because Dacunha's identification was the subject of pretrial
motion practice, the defendant's objection was preserved and we
review any error under the prejudicial error standard.
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). "This requires
a two-part analysis: (1) was there error; and (2) if so, was
that error prejudicial." Id. "An error is not prejudicial if
it 'did not influence the jury, or had but very slight effect.'"
Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994).
"Making a determination of the identity of a person from a
photograph or video image is an expression of an opinion."
Commonwealth v. Pina, 481 Mass. 413, 429 (2019). "The general
rule is that a witness's opinion concerning the identity of a
person depicted in a surveillance photograph is admissible if
there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph
than is the jury." Id. at 429-430, quoting Commonwealth v.
2 Vacher, 469 Mass. 425, 441 (2014). "Put another way, such
testimony is admissible . . . when the witness possesses
sufficient relevant familiarity with the defendant that the jury
cannot also possess." Pina, supra, at 430, quoting Vacher,
supra.
The judge allowed the Commonwealth's motion in limine to
admit Dacunha's testimony after an evidentiary hearing at which
Dacunha testified. She determined that the Commonwealth had met
its burden under Pina based on Dacunha's testimony that he had
"known [the defendant] for years, based upon interactions as
part of his duties as a sort of a community officer and is
familiar with the defendant having come into contact with him
over a hundred times."
The defendant does not contest that Dacunha's long
acquaintance with the defendant (including his familiarity with
the defendant's voice) provided "sufficient relevant familiarity
with the defendant that the jury cannot also possess," Pina, 481
Mass. at 430, quoting Vacher, 469 Mass. at 441, rendering
Dacunha qualified to identify the defendant. Rather, he asserts
that the videos ("poor" and "grainy") are "hopelessly obscure"
and not appropriate for an identification (citation omitted).
Pleas, 49 Mass. App. Ct. at 325. We are not persuaded. We
focus, as did counsel, on clips in exhibit 5 (South Second
3 Street sequence).2 Having reviewed the relevant video, we do not
agree that its quality was too poor to allow for the
identification.
The video clips in the South Second Street sequence are
clear. One can read the words "school bus" on a placard on the
roof of a van by which the defendant pauses to pull a light-
colored shirt over his naked torso before continuing at a jog
down the block. On an earlier clip that shows the defendant
walking shirtless from a driveway onto the sidewalk, the image
is sufficiently clear that the defendant's pectoral muscles are
visible. Because of distance, the defendant's facial features
are not easily visible, but his "body type and hairstyle" are
visible, adequately supporting Dacunha's identification.
Furthermore, Dacunha's identification of the defendant in
this sequence did not stand alone. A witness who had known the
2 As to the first video sequence (exhibit 2, the Monte's Park sequence), any error in admitting Dacunha's testimony was not prejudicial because other witnesses also placed the defendant at the scene. The defendant's girlfriend testified that she was with the defendant and Aaliyah Martin on the night of the shooting, although she did not remember where they went. She identified herself getting out of a car at Monte's Park, identified her voice and Ms. Martin's voice, and tentatively identified the defendant's voice. Ms. Martin confirmed that she was with the defendant's girlfriend at Monte's Park that night, although she did not remember whether the defendant was with them. The defendant does not contest Dacunha's identification of the defendant's voice saying "Louie" and "Aziza" on later clips in exhibit 2.
4 defendant for "a few years" and had previously been in a
romantic relationship with him described seeing him on the other
side of Margin Street, making eye contact with him, then
watching him cross to her side of the street. Watching a video
clip from Margin Street (a few minutes after the South Second
Street sequence), she identified herself and her brother and
agreed that a figure that "appeared to be" the defendant crossed
the street, mirroring the "scenario" she had described. We
discern no prejudicial error in the admission of Dacunha's
testimony.
2. Challenged testimony about drug purchases. The
defendant also challenges testimony by an acquaintance that she
"used to buy drugs off of him." This testimony was immediately
stricken upon objection, with the judge telling the jury, "It's
stricken from the record." The defendant moved for a mistrial,
which was denied. We review for abuse of discretion. See
Commonwealth v. Mullane, 445 Mass. 702, 711 (2006).
"A trial judge is in the best position to determine whether
a mistrial, an extreme measure available to a trial judge to
address error, is necessary, or whether a less drastic measure,
such as a curative instruction, is adequate." Commonwealth v.
Amran, 471 Mass. 354, 360 (2015). "Where a party seeks a
mistrial in response to the jury's exposure to inadmissible
5 evidence, the judge may correctly rel[y] on curative
instructions as an adequate means to correct any error and to
remedy any prejudice to the defendant" (quotation and citations
omitted). Mullane, 445 Mass. at 711. The jury are presumed to
follow the judge's instructions and to disregard testimony that
has been struck. See Amran, supra.
In addition, before the jury began hearing evidence, the
judge had explained what it meant when she struck testimony,
instructing that they were to "disregard that question and . . .
not speculate as to what the answer might have been." The judge
reiterated this charge in her closing instructions, telling the
jury that any testimony as to which she sustained an objection
or ordered struck was "not evidence and must not be considered
by you. It's as if the testimony was never given and it must
play no part whatsoever in your deliberations." Although she
did not give an immediate limiting instruction after striking
the testimony, in the absence of a request from counsel, no more
was required. See Commonwealth v. Teixeira, 486 Mass. 617, 629
n.7 (2021). This case is not like those cited by the defendant
in which a jury instruction was inadequate to counter prejudice
resulting from inadmissible evidence. The challenged witness
testimony was a single line, immediately struck, and unrelated
6 to the criminal charges against the defendant. We perceive no
error.
Judgment of conviction of malicious destruction of property affirmed.
By the Court (Massing, Hershfang & Tan, JJ.3),
Clerk
Entered: August 11, 2025.
3 The panelists are listed in order of seniority.