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-475
COMMONWEALTH
vs.
JEROME REED.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the Boston Municipal
Court, the defendant was convicted of the lesser included
offense of assault and battery and acquitted of the charged
offense of indecent assault and battery. On appeal, the
defendant argues that video recordings (videos) from
Massachusetts Bay Transportation Authority (MBTA) and city of
Boston security cameras should not have been admitted in
evidence because the videos were improperly authenticated. We
affirm.
1. MBTA videos. An officer with the MBTA transit police,
Jonathan Tetrault, testified that on August 9, 2021, he was
assigned to investigate a possible indecent assault and battery
inside Forest Hills MBTA station (station). As part of that
investigation, Tetrault took the victim's statement and reviewed MBTA surveillance videos. Tetrault found videos depicting the
victim walking down stairs to the platform with a man following
her, looking around, and lifting her dress. The victim
immediately turns around and hits or pushes the man. The man
walks up the stairs and the victim follows. Tetrault also
located videos of a man whom he later identified as the
defendant entering the station before the incident and running
from the station afterward. The defendant is wearing black
footwear with a white sole, which stands out on the color
videos, as well as jeans with distinctive rips on the front
thigh and knee. In all, twelve MBTA videos were introduced
during Tetrault's testimony.1
Tetrault additionally made photographs (photos) of the
perpetrator's face using still images from the videos, which
Tetrault showed to a fellow transit police officer who
recognized the defendant. On August 17, 2021, Tetrault stopped
the defendant when he saw him at a Boston police station and
spoke with him about the August 8 incident. During that
conversation, the defendant identified himself in the photos.
Both the MBTA videos and the photos were admitted in evidence
without objection.
1 We have reviewed the MBTA and city videos introduced at trial and provided as part of the appellate record.
2 In general, evidence is admissible where it is relevant,
that is, where it tends to make a fact more or less probable
than it would be without it. Poirier v. Plymouth, 374 Mass.
206, 210 (1978). "Authentication represents a special aspect of
relevancy in that evidence cannot have a tendency to make the
existence of a disputed fact more or less likely if the evidence
is not that which its proponent claims." Commonwealth v. Meola,
95 Mass. App. Ct. 303, 307 (2019), quoting United States v.
Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). Acting as
gatekeeper, the trial judge "is to determine whether there is
evidence sufficient, if believed, to convince the [fact finder]
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), quoting M.S. Brodin & M. Avery,
Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). The
admissibility of evidence "is left to the discretion of the
trial judge, and we will overturn the judge's decision only
where a defendant is able to bear the heavy burden of
demonstrating an abuse of that discretion." Commonwealth v.
Figueroa, 56 Mass. App. Ct. 641, 646 (2002), quoting
Commonwealth v. Obershaw, 435 Mass. 794, 803 (2002).
The defendant argues that the MBTA videos were not properly
authenticated because Tetrault's testimony failed to describe
how the MBTA surveillance system operates and how he made copies
3 of the videos. Videos, like photographs, are usually
"authenticated directly through competent testimony that the
scene they show is a fair and accurate representation of
something the witness actually saw[;] . . . authenticity also
can be established circumstantially by evidence sufficient to
support a finding that the matter in question is what its
proponent claims" (quotation and citation omitted). Figueroa,
56 Mass. App. Ct. at 646. See Mass. G. Evid. § 901(a) (2024).
Circumstantial evidence can include the "[a]ppearance, contents,
substance, internal patterns, or other distinctive
characteristics" of the proffered evidence. Commonwealth v.
Siny Van Tran, 460 Mass. 535, 546 (2011), quoting Mass. G. Evid.
§ 901(b)(1), (4) (2011) (copy of airline ticket properly
authenticated by witness who was not employed by airline at time
ticket issued but who was able to testify to familiar markers of
authenticity of such records).
Tetrault's testimony was sufficient to authenticate the
MBTA videos. He was able to describe the process by which he
accessed the videos and identified the relevant video clips,
including how cameras are numbered and mapped in order to
identify their location. He further testified that he
recognized the locations depicted in the clips and that the
videos are fair copies of the videos he viewed as part of his
investigation. The videos themselves have date and time stamps
4 as well as an identifying code, and he testified that there was
no reason to believe that the time stamps in the videos are
inaccurate. The time stamps accord with the sequence of events
alleged.
It is also significant that the defendant identified
himself in the photos Tetrault created from the videos
introduced at trial. It is reasonable to infer from the
defendant's self-identification that the videos are accurate
depictions of what they purport to show. See Commonwealth v.
Pytou Heang, 458 Mass. 827, 855-856 (2011) (eyewitness
identification of individuals in security footage sufficient to
authenticate video). Furthermore, the defendant is dressed the
same in all the videos, providing a sufficient basis to infer
that the same person appears in all the video clips, including
those of the incident.
On this record, we conclude that the trial judge did not
err in admitting the MBTA videos. See Commonwealth v. Santos,
95 Mass. App. Ct. 791, 795 (2019) (where "there is no error,
then there is no risk of a miscarriage of justice and appellate
relief is denied").
2. City videos. Two videos from city of Boston cameras
near the station were also admitted without objection. Tetrault
did not testify to the circumstances under which he acquired
this footage.
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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-475
COMMONWEALTH
vs.
JEROME REED.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the Boston Municipal
Court, the defendant was convicted of the lesser included
offense of assault and battery and acquitted of the charged
offense of indecent assault and battery. On appeal, the
defendant argues that video recordings (videos) from
Massachusetts Bay Transportation Authority (MBTA) and city of
Boston security cameras should not have been admitted in
evidence because the videos were improperly authenticated. We
affirm.
1. MBTA videos. An officer with the MBTA transit police,
Jonathan Tetrault, testified that on August 9, 2021, he was
assigned to investigate a possible indecent assault and battery
inside Forest Hills MBTA station (station). As part of that
investigation, Tetrault took the victim's statement and reviewed MBTA surveillance videos. Tetrault found videos depicting the
victim walking down stairs to the platform with a man following
her, looking around, and lifting her dress. The victim
immediately turns around and hits or pushes the man. The man
walks up the stairs and the victim follows. Tetrault also
located videos of a man whom he later identified as the
defendant entering the station before the incident and running
from the station afterward. The defendant is wearing black
footwear with a white sole, which stands out on the color
videos, as well as jeans with distinctive rips on the front
thigh and knee. In all, twelve MBTA videos were introduced
during Tetrault's testimony.1
Tetrault additionally made photographs (photos) of the
perpetrator's face using still images from the videos, which
Tetrault showed to a fellow transit police officer who
recognized the defendant. On August 17, 2021, Tetrault stopped
the defendant when he saw him at a Boston police station and
spoke with him about the August 8 incident. During that
conversation, the defendant identified himself in the photos.
Both the MBTA videos and the photos were admitted in evidence
without objection.
1 We have reviewed the MBTA and city videos introduced at trial and provided as part of the appellate record.
2 In general, evidence is admissible where it is relevant,
that is, where it tends to make a fact more or less probable
than it would be without it. Poirier v. Plymouth, 374 Mass.
206, 210 (1978). "Authentication represents a special aspect of
relevancy in that evidence cannot have a tendency to make the
existence of a disputed fact more or less likely if the evidence
is not that which its proponent claims." Commonwealth v. Meola,
95 Mass. App. Ct. 303, 307 (2019), quoting United States v.
Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). Acting as
gatekeeper, the trial judge "is to determine whether there is
evidence sufficient, if believed, to convince the [fact finder]
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), quoting M.S. Brodin & M. Avery,
Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). The
admissibility of evidence "is left to the discretion of the
trial judge, and we will overturn the judge's decision only
where a defendant is able to bear the heavy burden of
demonstrating an abuse of that discretion." Commonwealth v.
Figueroa, 56 Mass. App. Ct. 641, 646 (2002), quoting
Commonwealth v. Obershaw, 435 Mass. 794, 803 (2002).
The defendant argues that the MBTA videos were not properly
authenticated because Tetrault's testimony failed to describe
how the MBTA surveillance system operates and how he made copies
3 of the videos. Videos, like photographs, are usually
"authenticated directly through competent testimony that the
scene they show is a fair and accurate representation of
something the witness actually saw[;] . . . authenticity also
can be established circumstantially by evidence sufficient to
support a finding that the matter in question is what its
proponent claims" (quotation and citation omitted). Figueroa,
56 Mass. App. Ct. at 646. See Mass. G. Evid. § 901(a) (2024).
Circumstantial evidence can include the "[a]ppearance, contents,
substance, internal patterns, or other distinctive
characteristics" of the proffered evidence. Commonwealth v.
Siny Van Tran, 460 Mass. 535, 546 (2011), quoting Mass. G. Evid.
§ 901(b)(1), (4) (2011) (copy of airline ticket properly
authenticated by witness who was not employed by airline at time
ticket issued but who was able to testify to familiar markers of
authenticity of such records).
Tetrault's testimony was sufficient to authenticate the
MBTA videos. He was able to describe the process by which he
accessed the videos and identified the relevant video clips,
including how cameras are numbered and mapped in order to
identify their location. He further testified that he
recognized the locations depicted in the clips and that the
videos are fair copies of the videos he viewed as part of his
investigation. The videos themselves have date and time stamps
4 as well as an identifying code, and he testified that there was
no reason to believe that the time stamps in the videos are
inaccurate. The time stamps accord with the sequence of events
alleged.
It is also significant that the defendant identified
himself in the photos Tetrault created from the videos
introduced at trial. It is reasonable to infer from the
defendant's self-identification that the videos are accurate
depictions of what they purport to show. See Commonwealth v.
Pytou Heang, 458 Mass. 827, 855-856 (2011) (eyewitness
identification of individuals in security footage sufficient to
authenticate video). Furthermore, the defendant is dressed the
same in all the videos, providing a sufficient basis to infer
that the same person appears in all the video clips, including
those of the incident.
On this record, we conclude that the trial judge did not
err in admitting the MBTA videos. See Commonwealth v. Santos,
95 Mass. App. Ct. 791, 795 (2019) (where "there is no error,
then there is no risk of a miscarriage of justice and appellate
relief is denied").
2. City videos. Two videos from city of Boston cameras
near the station were also admitted without objection. Tetrault
did not testify to the circumstances under which he acquired
this footage. In the complete absence of any testimony
5 regarding the origin of that footage or its reliability, it was
error to admit those videos. See Commonwealth v. Connolly, 91
Mass. App. Ct. 580, 588 (2017) (video inadmissible for lack of
authentication where no witness testified to date and time of
video, placement of cameras, manner of operation, manner of
storage, and one month had passed between offense and viewing of
footage by investigating officer).
Nonetheless, the admission of videos from the city cameras
did not create a substantial risk of miscarriage of justice.
See Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023),
quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C.,
444 Mass. 72 (2005) (where defendant did not object during
trial, review for substantial risk of miscarriage of justice,
considering "[(1)] the strength of the Commonwealth's case,
[(2)] the nature of the error, [(3)] the significance of the
error in the context of the trial, and [(4)] the possibility
that the absence of an objection was the result of a reasonable
tactical decision"). The defendant argues that the footage of
the defendant fleeing the station established consciousness of
guilt, which was central to the trial judge coming to a guilty
verdict. The defendant bases this argument on statements made
by the judge in announcing the verdict. This argument is
unavailing.
6 The city videos were cumulative of the MBTA videos. The
MBTA videos depict the defendant and the victim exiting a bus
and entering the station. The defendant follows the victim
closely into the station, through the fare gates, and down a
flight of stairs. As the defendant and the victim descend the
stairs, he looks around and then lifts the victim's skirt. The
victim immediately reacts to the defendant, pushing him away.
The defendant then turns around and walks back up the stairs.
Further, videos from at least three MBTA cameras shows the
defendant running around and eventually away from the station.
The city videos only depict a distant view of a man dressed in
the same clothing as the defendant running around the perimeter
of the station. We discern no risk of a miscarriage of justice.
See Azar, 435 Mass. at 687, quoting Commonwealth v. LeFave, 430
Mass. 169, 174 (1999) ("The substantial risk standard requires
us to determine 'if we have a serious doubt whether the result
of the trial might have been different had the error not been
made'"). Nothing in the judge's statement that the defendant
"subsequently fled" suggested that he relied more on the city
videos than the MBTA videos. In any event, such reliance is
immaterial where sufficient alternative evidence existed to
support a guilty verdict. See Commonwealth v. Phim, 462 Mass.
470, 478-480 (2012) (no substantial risk of miscarriage of
7 justice where evidence admitted in error did not bear on key
issue).
Judgment affirmed.
By the Court (Henry, D'Angelo & Hodgens, JJ.2),
Clerk
Entered: September 11, 2024.
2 The panelists are listed in order of seniority.