Commonwealth v. Connolly
AC 16-P-107
| Mass. App. Ct. | May 25, 2017Background
- July 1, 2014: an altercation occurred in an Everett apartment hallway between defendant David Connolly and victim Carol White; defendant charged with assault and battery.
- Police Officer Paul Giardina interviewed both parties; defendant gave accounts including that some contact was accidental.
- Building management showed Giardina surveillance video of the incident on August 7, 2014; the recording was later erased before trial (no bad faith by Commonwealth).
- At trial the Commonwealth presented only Officer Giardina, who described what he recalled seeing on the now-missing video (including the defendant lifting both arms and shoving White). Defense had not seen the video and objected to admission of the officer’s testimony.
- Trial judge admitted Giardina’s testimony; jury convicted. On appeal the court considered authentication of the lost video and admissibility of the officer’s identification/opinion based on the missing recording.
Issues
| Issue | Commonwealth's Argument | Connolly's Argument | Held |
|---|---|---|---|
| Whether authentication is required for testimony about a lost surveillance video | No authentication required when the recording is not being admitted; issues go to weight, not admissibility | Testimony about lost video must be authenticated as a fair and accurate recording before admission | Authentication required; Commonwealth failed to show by a preponderance that the viewed video was a genuine recording of the July 1 events, so testimony was inadmissible |
| Whether officer’s identifications and descriptive testimony from the missing video amounted to admissible lay opinion | Identification testimony admissible if adequate foundation is laid; lost video does not categorically bar testimony | Officer’s opinion was inadmissible because jury could not view video and defense could not test officer’s recollection by cross-examination | Identification/opinion testimony admissible in principle but here inadmissible: Commonwealth did not provide foundational facts showing the officer’s opinion was rationally based on perception or helpful to jury; testimony usurped jury role |
Key Cases Cited
- Commonwealth v. Purdy, 459 Mass. 442 (Mass. 2011) (authentication requires evidence sufficient for jury to conclude item is what proponent claims)
- Commonwealth v. Williams, 456 Mass. 857 (Mass. 2010) (communications and electronic messages require foundational proof of identity/source to admit testimony about them)
- Commonwealth v. Pytou Heang, 458 Mass. 827 (Mass. 2011) (surveillance videotape authenticated by eyewitness to the event and foundation about recording process)
- Commonwealth v. Pleas, 49 Mass. App. Ct. 321 (Mass. App. Ct. 2000) (factors for admitting identification from a recording when jury can view it)
- State v. Robinson, 118 A.3d 242 (Me. 2015) (permitting identification testimony about lost/destroyed photo/video where testimony is grounded in firsthand knowledge and adequate foundation)
- United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013) (lay opinion inadmissible when witness gives conclusory interpretations without identifying objective bases the jury can verify)