Massachusetts Appeals Court Reverses Everett Assault Conviction Where Videotape of Incident was Unintentionally Destroyed

The Massachusetts Appeals Court today reversed an Everett man’s conviction for assaulting an elderly woman (his neighbor) when surveillance video of the incident was accidentally erased and the only witness – a police officer – was improperly permitted to describe what he saw on the video.  The name of the case is Commonwealth v. Connolly.

In 2014, an Everett police officer responded to an apartment building to investigate an incident that occurred between the defendant and his neighbor.  The defendant told the officer he accidentally made contact with the neighbor after engaging in a “small argument.”  According to the defendant, he turned around and the neighbor was right behind him.  He threw his hands up to stop her and unintentionally knocked her down.  A building supervisor shared surveillance video with the cop, who testified at trial that the defendant and the neighbor appeared to be shouting at one another on the video.  The defendant then walked 20 or 30 feet down the hall toward the neighbor and used two hands to shove her to the ground.  Before the trial, the police officer attempted to obtain a copy of the surveillance video.  However, the apartment building manager accidentally erased the video while trying to copy it.  As a result, the defendant (and his attorney) never saw the surveillance footage.  The trial judge correctly pointed out the defendant was in a fundamentally unfair position, having to defend a case where he was not given access to the most important piece of evidence.  Nevertheless, she allowed the case to be presented to a jury, which convicted the defendant of assault and battery.  The judge sentenced the defendant to serve six months of probation.  The defendant appealed and the Appeals Court reversed.

The Court found two problems with the admission of the police officer’s testimony about his observations of the surveillance video.

Authentication
The party offering the evidence is required to prove the evidence is authentic.  In this case, the Commonwealth was obligated to establish the testifying police officer was viewing surveillance video of the altercation between the defendant and the alleged victim.  A witness can authenticate a surveillance video in one of two ways: (1) the witness (who was also an eyewitness to the event) can testify the video fairly and accurately portrays the incident; or (2) a witness (in this case, probably the apartment manager) can testify about the surveillance procedures and how the video material is stored.  The Commonwealth here did not authenticate the video at all, and therefore there was an insufficient foundation for its introduction.

Identification Opinion
The Appeals Court also concluded the police officer was improperly permitted to offer his lay opinion that the defendant was the person depicted in the video assaulting the elderly woman.  The Commonwealth failed to introduce evidence that the cop made observations of the defendant and the neighbor during his investigation that would have allowed him to identify them on the surveillance video.  Instead, he testified in a conclusory manner that he had seen the defendant shove the neighbor.  The Appeals Court ruled his opinion would not have been helpful to the jury.

The defendant’s conviction is vacated and the case is remanded to the district court for a new trial.  The Appeals Court expressed doubt that there are any circumstances under which this defendant can receive a fair trial.  It’s true that a defendant cannot adequately defend himself when he has not been given access to the only evidence being used to convict him.  The District Attorney’s Office should decline to prosecute the defendant again.