In a recent decision, Commonwealth v. Connolly, the Appeals Court ruled that testimony from a police officer describing a video that he watched, but that the Commonwealth failed to produce in discovery, should not have been admitted. In reversing the defendant’s conviction of assault and battery under G. L. c. 265, § 13A, the Court ruled that the Commonwealth (1) failed to authenticate the contents of the videotape and (2) failed to lay a sufficient foundation for admission of the officer’s identification testimony.
The background was as follows. “[S]ome sort of incident occurred between the defendant and the victim [a woman named White] at an apartment building.” Officer Giardina was dispatched to the scene of the incident “where he spoke with both White and the defendant. He observed that White was ‘elderly.’…. The defendant told the officer that he had been in the community bathroom … and accidentally bumped White over when he opened the bathroom door. The officer did not arrest the defendant because ‘it appeared that it was an accident.’ About a month later, … Giardina returned to the apartment building and spoke again with the defendant. This time, the defendant admitted that he and White ‘had a small argument’ before going their separate ways. The defendant also admitted that he made contact with White twice: first, when he knocked her over with the bathroom door, and second, when he bumped into her in the hallway. According to the defendant’s description of this second incident, after he ‘walked down the hallway and came back,’ he ‘was turned around looking away from [White]’ when ‘she came up behind him’; at that point he ‘quickly turned around,’ ‘didn’t realize she was there,’ and ‘just threw his hands up to stop her and knocked her down.’ That same day, … Giardina met with [a man name] Crouse, who he ‘believe[d] … was one of the building supervisors.’ The officer testified, over the defendant’s objection, that Crouse showed him ‘video of the incident.’ [Giardina] then described the contents of the video, again over the defendant’s objection, as follows: ‘In the video you can see Mrs. White going to the bathroom door. The door swings open. You see Mrs. White go into the bathroom and then she comes out from the bathroom and you also see Mr. Connolly come out from the bathroom. They go their separate ways…. Mr. Connolly was walking away from the bathroom. Mrs. White was still by the bathroom door…. [I]t appears that they’re having some sort of shouting match. And then Mr. Connolly walks back towards Mrs. White and shoves her to the ground.’” In his appeal, the defendant argued “that the officer’s testimony should not have been admitted  because the Commonwealth failed to authenticate the video; and  [because] the officer’s identifications of the defendant and White constituted inadmissible lay opinion testimony.” Continue reading →