Commonwealth v. Brum ( 2023 )

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SJC-13383
COMMONWEALTH vs. DANIEL BRUM.
Bristol. April 5, 2023. - August 10, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Assault and Battery by Means of a Dangerous Weapon. Evidence,
Testimony before grand jury, Identification, Prior
inconsistent statement, Hearsay, Opinion, Videotape.
Identification. Deoxyribonucleic Acid. Practice,
Criminal, Argument by prosecutor.
Indictment found and returned in the Superior Court
Department on October 30, 2020.
The case was tried before Robert C Cosgrove, J.
The Supreme Judicial Court granted an application for
direct appellate review.
John P. Warren for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for
the Commonwealth.
Anton Robinson, of New York, Katharine Naples-Mitchell,
Eliza Lockhart-Jenks, Radha Natarajan, & Chauncey B. Wood, for
Criminal Justice Institute at Harvard Law School & others, amici
curiae, submitted a brief.
2
GEORGES, J. The defendant, Daniel Brum, was found guilty
of assault and battery by means of a dangerous weapon in
connection with the August 30, 2020, stabbing of the victim,
Jordan Raposo. Prior to trial, the victim's then girlfriend,
Shyla Bizarro, identified the defendant to the police as the
victim's attacker from surveillance video footage. She also
testified to her identification of the defendant from the
surveillance video before a grand jury.
Prior to Bizarro's testimony at trial, however, a voir dire
of Bizarro revealed that she intended not only to recant both
her statements to police and her grand jury testimony but also
to claim that the victim pressured her into making those prior
statements. As a result, the trial judge admitted substantively
the portions of Bizarro's grand jury testimony that she had
recanted, including her prior statements of identification. See
Commonwealth v. Cong Duc Le, 444 Mass. 431, 439-441 (2005);
Commonwealth v. Daye, 393 Mass. 55, 75 (1984); Mass. G. Evid.
§ 801(d)(1)(A), (C) (2023).
On appeal, the defendant challenges whether the admitted
portions of Bizarro's grand jury testimony fell within the
hearsay exemptions for prior inconsistent statements, see Mass.
G. Evid. § 801(d)(1)(A), and statements of identification, see
Mass. G. Evid. § 801(d)(1)(C). He also challenges the
admissibility of portions of that testimony on other independent
3
grounds, including that it contains multilevel hearsay and
inadmissible lay opinion testimony. Additionally, the defendant
raises various other evidentiary errors and asserts that
portions of the prosecutor's closing argument were improper.
For the reasons discussed infra, we conclude that the trial
judge properly admitted portions of Bizarro's grand jury
testimony in accordance with the hearsay exemption for prior
inconsistent statements. See Daye, 393 Mass. at 75; Mass. G.
Evid. § 801(d)(1)(A). We further conclude that the portions of
Bizarro's grand jury testimony identifying the defendant in the
surveillance video independently satisfied the hearsay exemption
for statements of identification. See Cong Duc Le, 444 Mass. at
439-441; Mass. G. Evid. § 801(d)(1)(C). In particular, we
decline to adopt the defendant's argument that the statements of
identification within Bizarro's grand jury testimony did not
satisfy the requirements under our common law as nonhearsay
under Cong Duc Le and Daye because Bizarro was not a percipient
witness to the underlying crime. Finding no grounds for
reversal on that basis or in the defendant's remaining
arguments, we affirm the defendant's conviction.1
1 We acknowledge the amicus brief submitted by the Criminal
Justice Institute at Harvard Law School, the New England
Innocence Project, the Massachusetts Association of Criminal
Defense Lawyers, and the Innocence Project.
4
Facts. "Because the defendant does not challenge the
sufficiency of the evidence at trial, we briefly summarize it,
reserving certain details" for later discussion of the alleged
errors. See Commonwealth v. Maldonado, 466 Mass. 742, 744,
cert. denied, 572 U.S. 1125 (2014).
Just before noon on August 30, 2020, the victim was stabbed
while outside a convenience store in New Bedford. Security
camera video footage showed the victim walking out of the store,
into the parking lot, and toward a minivan. The perpetrator
then jogged up to the victim, punched the victim, and jabbed his
arm towards the victim's groin area. After the attack, the
perpetrator jogged away, climbed into a dark-colored sport
utility vehicle (SUV), and drove out of the store parking lot.
The injured victim then got into the minivan and drove off.
Around the time of the attack, Maria Mattias and her
husband, Andrew Brum, the defendant's brother, were at their
home in New Bedford, along with their nephew, Carlos Santos.
Mattias and Santos were in the back yard when they saw the
victim enter the back yard, bleeding and stumbling.2 Blood was
2 The defendant's brother and his wife were familiar with
the victim. The defendant's brother had worked with the victim
as masons for several years and knew each other independent of
the victim's relationship with the defendant. As discussed
infra, the defendant and the victim had been roommates earlier
that summer, but animosity had grown between them after the
victim kicked the defendant out of that living situation.
5
dripping from the victim's waist and, before collapsing and
appearing to lose consciousness, he stated that he needed help.
While they waited for emergency services, Mattias discovered
that the victim was bleeding from a wound to his groin. The
minivan that the victim had driven to Mattias's and Brum's house
was still running, and the door was open.
Bizarro, the victim's girlfriend at the time, arrived at
Mattias's and Brum's home soon after medical personnel. Bizarro
appeared shocked, upset, and frantic. The victim was
transported to Rhode Island Hospital, where it was determined
that he had suffered four stab wounds: one to the groin, one to
his left leg, and two to his scrotum.
In the aftermath of the stabbing, New Bedford police
officers retrieved the convenience store's video surveillance
footage that showed the attack. The next day, a police officer
discovered a Ford Edge SUV parked one-half mile away from the
store that matched the description of the perpetrator's vehicle
as seen in the surveillance video footage. After police seized
the Ford Edge, they determined that it had been rented by the
defendant. They conducted deoxyribonucleic acid (DNA) tests on
the Ford Edge; the defendant's DNA, as well as that of from
three to five other potential contributors, was identified in
6
traces of occult blood3 in the Ford Edge. The victim's DNA did
not match any of the profiles.
In October 2020, Bizarro testified before a Bristol County
grand jury. She testified that she had known the defendant for
over fifteen years; they had grown up in the same area of New
Bedford, and Bizarro had gone to the same school as the
defendant and his brother. Additionally, she testified that the
defendant and the victim had been roommates that summer, and
that there was animosity between them because the defendant felt
that the victim had unfairly kicked the defendant out of their
apartment. Bizarro also testified that, although she did not
recognize the Ford Edge seized by police, she knew that the
defendant often drove rental cars.
Bizarro further testified that, on the day of the stabbing,
she had received a telephone call from the victim, where he
claimed that "DB stabbed me."4 She stated to the grand jury that
the victim sounded frantic and nervous on the telephone call,
and he was breathing heavily. Bizarro testified that on the day
after the stabbing, she had spoken with police officers at the
New Bedford police station, where she was shown the surveillance
3 Occult blood is blood not visible to the naked eye. See
Commonwealth v. Marquetty, 416 Mass. 445, 446 (1993).
4 Bizarro testified that the victim referred to the
defendant as "DB" and that she knew the defendant by this
nickname.
7
video footage. Prior to viewing the footage, she had told
officers that she knew who had stabbed the victim and that it
was the defendant. Bizarro further testified that, after
viewing the footage at the police station, she told police that
she was "[p]ositive" that the defendant was the perpetrator.
When the surveillance video footage was played before the grand
jury, Bizarro testified that she was able to identify the
defendant from the video because of his "clothes," "hair," and
"by the way he[ was] walking," as the defendant "has a very
distinctive walk."
Later that month, the grand jury indicted the defendant on
a charge of assault and battery by means of a dangerous weapon,
in violation of G. L. c. 265, § 15A (b). The defendant filed
several pretrial motions concerning the anticipated evidence at
trial. Among those denied were motions to exclude the DNA test
results and to exclude Bizarro's grand jury testimony where she
identified the defendant from the surveillance video footage.
The judge reserved for trial the defendant's motion to exclude
Bizarro's grand jury testimony where she claimed that the victim
told her, "DB stabbed me."
The defendant was tried before a jury from June 22 to June
25, 2021. At trial, the judge conducted a voir dire of Bizarro
prior to her testimony to ascertain, pursuant to the
requirements in Daye, 393 Mass. at 75, whether Bizarro's grand
8
jury testimony was admissible substantively under the hearsay
exemption for prior inconsistent statements.5 See Mass. G. Evid.
§§ 104(a), 801(d)(1).6 During the voir dire, Bizarro recanted
extensive portions of her grand jury testimony. She denied her
prior recollections of the day of the stabbing and any
5 The voir dire of Bizarro was requested by defense counsel.
6 Section 104(a) of the Massachusetts Guide to Evidence
provides:
"The court must decide any preliminary question about
whether a witness is qualified or competent, a privilege
exists, or evidence is admissible. In so deciding, the
court is not bound by the law of evidence, except that on
privilege."
Section 801(d) provides in pertinent part:
"A statement that meets the following conditions is not
hearsay:
"(1) A declarant-witness's prior statement. The declarant
testifies and is subject to cross-examination about a prior
statement, and the statement
"(A)(i) is inconsistent with the declarant's testimony;
(ii) was made under oath before a grand jury . . . ; (iii)
was not coerced; and (iv) is more than a mere confirmation
or denial of an allegation by the interrogator; [or]
". . .
"(C) identifies a person as someone the declarant perceived
earlier."
Here, although portions of Bizarro's grand jury testimony
ostensibly contained statements of identification, the trial
judge relied solely on the hearsay exemption for prior
inconsistent statements in determining that the testimony was
substantively admissible nonhearsay.
9
recollection of her interactions with police the day after the
stabbing, including her identification of the defendant from the
surveillance video footage. She likewise denied her
identification of the defendant before the grand jury. Finally,
she maintained that any statements she had given to police or in
her grand jury testimony were due to coercion by the victim, who
she claimed was abusing her at the time.
Based on his observations of Bizarro during the voir dire
and contradictions in her anticipated testimony, the judge made
the following findings: that there was opportunity to cross-
examine her at trial; that her prior statements were in her own
words and not coerced; and that she was feigning when she said
she was unable to recall various events. Based on those
findings, the judge allowed inconsistent portions of Bizarro's
grand jury testimony to be admitted for their truth. The judge
and counsel for each party then reviewed Bizarro's grand jury
testimony together to determine which portions had been recanted
and thus would be substantively admissible at trial. During
that process, defense counsel made contemporaneous objections to
the admission of various parts of Bizarro's grand jury
testimony.
Bizarro testified before the jury consistent with her voir
dire. Among other things, she recanted her identification of
the defendant from the surveillance video footage in the police
10
station and her grand jury testimony of that identification,
claiming that she did not recall seeing the surveillance video
footage at the police station. Instead, she claimed that she
could not tell the identity of the perpetrator from the footage,
and that the perpetrator "look[ed] like a random tall white guy"
who "could [have] be[en] anybody." When shown still images from
the video at trial, Bizarro remarked that she could not identify
the attacker as the defendant and that it was "a very poor
quality picture/video," a "horrible video." Bizarro testified
that she had only previously identified the perpetrator as the
defendant because the victim pressured her into doing so. The
trial judge then allowed the substantive admission of the
previously reviewed portions of her grand jury testimony and
instructed the jury accordingly.
The jury convicted the defendant of assault and battery by
means of a dangerous weapon, and the defendant was sentenced to
a term of from four to seven years in State prison. The
defendant timely appealed, and we granted his application for
direct appellate review.
Discussion. On appeal, the defendant challenges the trial
judge's substantive admission in evidence of portions of
Bizarro's grand jury testimony that she recanted at trial,
including her prior identifications of the defendant in the
surveillance video. The defendant also challenges admission of
11
portions of that grand jury testimony on independent evidentiary
grounds, including the presence of multilevel hearsay and lay
opinion testimony that he claims was improperly admitted. The
defendant also challenges the admission of testimony by a police
officer who identified the defendant's vehicle from its license
plate by "zooming in" on certain video footage; he challenges
the admission of DNA and occult blood evidence; and he asserts
reversible error arising from the prosecutor's closing argument.
Addressing each of these claims in turn, we conclude there is no
basis on which to reverse the defendant's conviction.
1. Standard of review. At trial, the defendant raised
timely objections to several of the errors now before us on
appeal. Where the defendant's objections were preserved, we
review for prejudicial error. See Commonwealth v. Gonsalves,
488 Mass. 827, 835 (2022). Where the defendant did not raise a
timely objection, we review the alleged errors to determine
whether they gave rise to a substantial risk of a miscarriage of
justice. See Commonwealth v. Davis, 487 Mass. 448, 464 (2021),
S.C., 491 Mass. 1011 (2023).
2. Substantive admission of Bizarro's grand jury testimony
as nonhearsay. a. Prior inconsistent statements. As a
preliminary matter, we agree with the trial judge that all the
admitted portions of Bizarro's grand jury testimony satisfied
the requirements of the hearsay exemption for prior inconsistent
12
statements made under oath, see Daye, 393 Mass. at 73-74; Mass
G. Evid. § 801(d)(1)(A). As noted supra, a prior inconsistent
statement of a declarant witness is substantively admissible
under Mass G. Evid. § 801(d)(1)(A), if the "declarant testifies
and is subject to cross-examination about a prior statement, and
the statement (i) is inconsistent with the declarant's
testimony; (ii) was made under oath before a grand jury . . . ;
(iii) was not coerced; and (iv) is more than a mere confirmation
or denial of an allegation by the interrogator." See note 6,
supra.
Here, upon making a preliminary determination that Bizarro
was feigning a lack of memory, the trial judge properly and
carefully reviewed Bizarro's grand jury testimony -- with the
assistance of counsel -- to determine which portions of that
testimony qualified as "inconsistent" statements for purposes of
the relevant hearsay exemption. See Commonwealth v. Sineiro,
432 Mass. 735, 742 (2000) (witness's claim of lack of memory
qualifies as "inconsistent" for purposes of Mass. G. Evid.
§ 801[d][1][A]). See also Mass G. Evid. §§ 104(a) (judge
decides preliminary questions), 801(d)(1)(A) (hearsay exemption
for prior inconsistent statements). The defendant does not
dispute this preliminary determination, nor does he dispute the
trial judge's further determinations that Bizarro was subject to
cross-examination, that the statements were made under oath
13
before a grand jury, and that the testimony was more than a mere
confirmation or denial. Rather, the defendant argues that the
testimony was inadmissible under Mass. G. Evid. § 801(d)(1)(A)
because (1) there was an insufficient showing that the
statements were "not coerced"; (2) the Commonwealth failed to
introduce evidence corroborative of the grand jury testimony;
and (3) the declarant (Bizarro) was not a percipient witness to
the crime, see Daye, 393 Mass. at 73 n.18. We discern no error.
With respect to potential coercion, the record reflects
that the judge conducted a careful and comprehensive voir dire
of Bizarro and found that her prior statements were voluntary,
and her lack of memory was feigned. Although Bizarro testified
to the abusive nature of her relationship with the victim,
including that he told her to say certain things to police, the
judge, as the fact finder, was not obligated to credit that
testimony in finding that Bizarro's previous statements were
made in her own words. See Commonwealth v. DePina, 476 Mass.
614, 622 (2017). Bizarro claimed to lack any memory of
previously identifying the defendant -- a claim which persisted
even when presented with video of her prior identification and
her signature and identifying marks on video still images.
Under those circumstances, it was not erroneous for the judge to
discredit Bizarro's voir dire testimony that she was either
14
unable to recall her prior identifications of the defendant or
had not made the identifications in the first place.
Second, the issue of corroborative evidence raised by the
defendant has no bearing on the admissibility of Bizarro's grand
jury testimony. We stated in Daye, 393 Mass. at 74-75, that the
Commonwealth must offer corroborative evidence where grand jury
testimony relates to an essential element of the offense.
However, we later clarified that such a requirement goes to the
separate question of the "sufficiency of the evidence rather
than to its admissibility." DePina, 476 Mass. at 621 n.5,
citing Commonwealth v. Clements, 436 Mass. 190, 193 (2002).
Because the defendant does not challenge the sufficiency of the
evidence, we decline to review it here and conclude that
Bizarro's grand jury testimony was admissible under the hearsay
exemption for prior inconsistent statements, irrespective of any
corroborative evidence.
Lastly, we address the defendant's claim that Bizarro's
testimony failed to meet the requirements of the hearsay
exemption for prior inconsistent statements because Bizarro was
not a percipient witness to the crime. For support, the
defendant points to a footnote in our opinion in Daye, 393 Mass.
at 73 n.18, which states:
"We predicate probative use of prior inconsistent
statements on a showing that the declarant was a percipient
witness to the events in question. If it is clear from the
15
context in which the statement was made that the statement
was based on hearsay, rather than personal knowledge, the
statement may not be admitted as probative evidence."
The initial sentence of the footnote seems to restrict the
use of prior inconsistent statements under Mass. G. Evid.
§ 801(d)(1)(A) to situations in which the declarant was a
"percipient witness" to the "events in question," but it does
not specify which events are the "events in question." The
sentence that follows, however, clarifies that the operative
distinction is whether the prior statement "was based on
hearsay, rather than personal knowledge." Per the footnote in
Daye, a prior inconsistent statement that is based on hearsay
"may not be admitted as probative evidence." In Daye itself,
the relevant prior inconsistent statement also was a statement
of identification, and the requirement of personal knowledge was
satisfied when the witness observed the defendant during the
commission of the crime. Daye, 383 Mass. at 73.
Nothing in Daye, however, or our subsequent case law limits
the substantive use of prior inconsistent statements to
circumstances where the testifying witness is present at the
scene of a crime. See, e.g., Commonwealth v. Trotto, 487 Mass.
708, 723-725 (2021) (witness's grand jury testimony detailing
conversation where defendant described circumstances of victim's
death was admissible as prior inconsistent statements, despite
witness's absence at scene); DePina, 476 Mass. at 621-623
16
(witness's grand jury testimony describing her seeing
defendants' possession of handgun prior to shooting admissible,
despite witness not being present at shooting); Commonwealth v.
Noble, 417 Mass. 341, 347 (1994) (witness's grand jury testimony
pertaining to codefendant's conversation of crime substantively
admissible when witness was percipient witness to the
conversation, not the crime); Commonwealth v. Carrasquillo, 54
Mass. App. Ct. 363, 366, 370-371 (2002) (victim's statement of
identification of defendant as shooter partially based on
childhood spent together).
The defendant asks us to interpret the footnote in Daye in
a manner that would confound the current practice of courts and
counsel, see, e.g., Trotto, 487 Mass. at 723-725, when
considering the admissibility of prior inconsistent statements.
We decline to do so. Moreover, it is clear from the context of
Daye that the limitation discussed in footnote 18 applied only
to prior inconsistent statements of identification, not prior
inconsistent statements in general. As discussed infra, our
treatment of statements of identification has evolved
significantly since that opinion. See part 2.b, infra. See
also Cong Duc Le, 444 Mass. at 437-441; Mass. G. Evid.
§ 801(d)(1)(C) note.
b. Statements of identification. Although this basis was
not addressed by the trial judge, we note that the portions of
17
Bizarro's grand jury testimony where she identified the
defendant in the surveillance video were independently
admissible for their truth as nonhearsay under the exemption for
prior statements of identification. See Cong Duc Le, 444 Mass.
at 437-441; Mass. G. Evid. § 801(d)(1)(C). The defendant moved
in limine to exclude this evidence and renewed his objection at
trial; therefore, we review for prejudicial error. See
Gonsalves, 488 Mass. at 836.
The admissibility of prior statements of identification is
governed by the principles set forth in Cong Duc Le, 444 Mass.
at 436-437 (adopting Proposed Mass. R. Evid. § 801[d][1][C], and
overruling Daye as to "limitations . . . placed on the use of
extrajudicial identification evidence"). The defendant's
primary argument regarding these statements echoes his argument
concerning percipience and Daye addressed in part 2.a, supra:
because our jurisprudence limits the substantive admission of
prior statements of identification to identifications made by a
percipient witness and not those contained in lay opinion
testimony of a nonpercipient witness, Bizarro's identifications
are inadmissible on these grounds. The defendant first seeks
support for this argument in the language of Cong Duc Le itself,
namely, its requirement that the prior statement be "one of
identification of a person [made] after perceiving him"
(emphasis added). See Cong Dug Le, supra; Mass. G. Evid.
18
§ 801(d)(1)(C) (to be admissible under this subsection,
statement must "identif[y] a person as someone the declarant
perceived earlier"). The defendant contends that the verb
"perceive," as used in Cong Duc Le and Mass. G. Evid.
§ 801(d)(1)(C), is limited to perception of the person who is
the subject of the identification during the commission of the
crime.
We disagree, as the rule we adopted in Cong Duc Le contains
no such restriction. Instead, the requirement that a statement
be "one of identification of a person [made] after perceiving
him" refers only to the fact that the declarant's basis for the
identification must be personal knowledge, not hearsay. In Cong
Duc Le, 444 Mass. at 433, that personal knowledge arose from
declarant's perception of the defendants during the commission
of the crime, as well as his personal history with the
defendants. This requirement may be also satisfied where the
sole basis for the declarant's identification is years of
acquaintance with -- and perception of -- the subject, as
Bizarro's was here. See Commonwealth v. Raedy, 68 Mass. App.
Ct. 440, 449 n.14 (2007) ("perceive" language in § 801(d)(1)(C)
"focuses on the nature of the statement . . . identifying the
person after the declarant has perceived that person," without
limiting basis of perception).
19
Our precedent considering witness identifications more
generally supports this understanding. We have held that "[t]he
probative value of [an] identification depends on the strength
of its source." Commonwealth v. Johnson, 473 Mass. 594, 601
(2016) (considering fairness of out-of-court identifications).
The strength of an identification's independent source is
determined by different factors, including the "witness's prior
familiarity with the person identified, where that person is a
witness's family member, friend, or long-time acquaintance."
Id. at 601-602. As such, a witness's "long and close
relationship" with the identified subject and "considerable
familiarity" with the subject's physical characteristics may
very well make an identification more reliable than "a 'single'
or 'brief' exposure to a suspect in frightening conditions"
immediately after the commission of a crime. See Commonwealth
v. Vasquez, 482 Mass. 850, 861 (2019), quoting Commonwealth v.
Chamberlin, 86 Mass. App. Ct. 705, 713 (2014). Cf. Commonwealth
v. Crayton, 470 Mass. 228, 242 (2014) (eyewitness's familiarity
with defendant prior to crime "good reason" to allow in-court
showup as initial identification procedure). "When such
familiarity is present," even without presence at the scene of a
crime, "those witnesses may be able to discern identifying
characteristics that others could not, rendering their visual
20
identifications, in some circumstances, less unreliable."
Vasquez, supra.
Turning to Mass. G. Evid. § 801(d)(1)(C), which "has its
origins in our common law of evidence," Commonwealth v. Adams,
458 Mass. 766, 771 (2011), we note that appellate courts'
consideration of out-of-court identifications focus on the
reliability of the basis of the identification, rather than the
identifying witness's presence at the criminal activity. For
example, in Adams, supra at 771, we held the admission of out-
of-court identifications was not limited to formal
identification procedures, as an identifying witness who
"kn[ows] the defendant well," like the defendant's brother, was
a "more reliable pretrial statement of identification" than "a
witness's selection of a photograph of someone he does not
know." Our common-law prioritization of an identification's
reliability over the form of how that reliability is achieved is
especially relevant for Mass. G. Evid. § 801(d)(1)(C), which
exempts statements from categorization as unreliable hearsay.
We note finally that our interpretation of the current rule
as adopted in Cong Duc Le is entirely consistent with the
footnote in Daye as it pertains to Mass. G. Evid.
§ 801(d)(1)(A), discussed supra. In sum, neither Cong Duc Le
nor Daye (as modified in Cong Duc Le) requires that a prior
statement of identification or a prior inconsistent statement
21
made under oath be based on a witness's perception of the
individual during the commission of the crime.
3. Other challenges to admissibility of Bizarro's grand
jury testimony. In addition to raising the threshold issue of
whether the entirety of Bizarro's grand jury testimony is
admissible nonhearsay under Mass. G. Evid. § 801(d)(1)(A), the
defendant argues that specific portions of the grand jury
testimony were inadmissible on other evidentiary grounds.
a. Lay opinion testimony identifying defendant in
surveillance video. The defendant contends that Bizarro's grand
jury testimony identifying the defendant from the video footage
was inadmissible lay opinion testimony because it was "not
helpful" to the jury, see Commonwealth v. Pleas, 49 Mass. App.
Ct. 321, 325 (2000), and any probative value was outweighed by
its prejudicial effect, see Commonwealth v. Wardsworth, 482
Mass. 454, 477 (2019).
A "witness's opinion concerning the identity of a person
depicted in a surveillance [video] is admissible if there is
some basis for concluding that the witness is more likely to
correctly identify the defendant from the photograph [or video]
than is the jury." Commonwealth v. Vacher, 469 Mass. 425, 441
(2014), quoting Pleas, 49 Mass. App. Ct. at 326. "Put another
way, such testimony is admissible . . . when the witness
possesses sufficiently relevant familiarity with the defendant
22
that the jury cannot also possess" (quotation omitted). Vacher,
supra, quoting Pleas, supra at 326-327.
In denying the defendant's pretrial motion to exclude this
portion of Bizarro's grand jury testimony, the trial judge
reviewed the video footage and determined "that the
identification testimony of one with some familiarity with the
defendant would be helpful to the jury." The judge elsewhere
noted that the surveillance video footage was not excellent
quality, but also was not "hopelessly obscure"; the footage
showed a sunny day, with minimal blur. See Pleas, 49 Mass. App.
Ct. at 325. Additionally, the judge was presented with facts
that Bizarro knew the defendant since middle school and that the
defendant recently had been her boyfriend's roommate. See
Vasquez, 482 Mass. at 861 (witnesses had long relationship with
defendant as basis for video identification). Bizarro also
testified before the grand jury that she had been able to
identify the defendant from the surveillance video by "his
clothes, by the way he's walking, . . . everything." See id.(witnesses had familiarity with defendant's "stature, gait,
appearance, clothing, and features"). Even though both the jury
and Bizarro were able to view the same surveillance footage,
Bizarro was "specifically familiar with the defendant, such that
[she] could provide special insight into his appearance." Cf.
Wardsworth, 482 Mass. at 476 (opinion identification testimony
23
from officers with no independent familiarity of defendant
prejudiced defendant). In these circumstances, the judge did
not abuse his discretion in determining that Bizarro's testimony
had a proper foundation and would be helpful to the jurors, who
had the video and still images from the video before them.
Nor are we persuaded by the defendant's alternative
argument that, even if the testimony met the requirements for
admission of lay opinion testimony, the probative value of the
evidence was substantially outweighed by its prejudicial effect
where Bizarro recanted the testimony at trial. Appellate courts
reviewing the admission of lay opinion identification from a
video only require that there be "some basis for concluding that
the witness is more likely to correctly identify the defendant
from the [video] than is the jury." Vacher, 469 Mass. at 441,
quoting Pleas, 49 Mass. App. Ct. at 326. The purpose of
requiring such a foundation for lay opinion testimony is so the
jury have enough information to allow them to "conduct an
independent assessment of the accuracy and reliability of [the
witness's] identifications." Commonwealth v. Connolly, 91 Mass.
App. Ct. 580, 592-593 (2017). If subsequent testimony calls
into question the "accuracy and reliability" of a witness's
identification, that is a matter for the jury to resolve, not
the judge. See id. This is especially the case for statements
of identification that fall under Mass. G. Evid. § 801(d)(1)(C),
24
which contemplates scenarios where the jury are "confronted with
disputed testimony concerning identification." Cong Duc Le, 444
Mass. at 439-440. Rather than prejudice the defendant, the fact
that a prior identification is disputed is helpful to the jury
"in evaluating the over-all evidence as to whether the defendant
on trial was the one who committed the charged offense." Id. at
440-441. This is so even when a prior identification is self-
disputed, as Bizarro's was here.
b. Multilevel hearsay. The defendant argues that a
statement made by the victim to Bizarro -- "DB stabbed me" --
and introduced through Bizarro's grand jury testimony should
have been excluded under Daye as multilevel hearsay, because the
declarant of the underlying statement was unavailable for cross-
examination. Because the defendant objected before and at
trial, we review the admission of this statement for prejudicial
error. See Gonsalves, 488 Mass. at 835. Finding none, we
conclude that the defendant's argument is without merit.
Multilevel hearsay is admissible "only if each of the
multiple hearsay statements falls within an exception to the
hearsay rule." DePina, 476 Mass. at 623, citing Commonwealth v.
Gil, 393 Mass. 204, 218 (1984); Mass. G. Evid. § 805 (2023). As
discussed supra, the first layer of statements challenged as
multilevel hearsay -- Bizarro's statement to the grand jury,
which she recanted at trial -- is nonhearsay and admissible for
25
its substance as a prior inconsistent statement of a declarant
witness. See Mass. G. Evid. § 801(d)(1)(A). The defendant's
assertion that this statement is inadmissible because the victim
was not available for cross-examination at trial, in
contradiction of the requirements in Daye, rests on a
misapplication of the rule. Because it is Bizarro's statement
that is of concern under Mass. G. Evid. § 801(d)(1)(A), Bizarro
is the declarant who must be, and was, available for cross-
examination at trial. As explained infra, the underlying
statement of the victim -- "DB stabbed me" -- that Bizarro
repeated in her testimony is separately admissible as a
spontaneous utterance. Thus, cross-examination of the victim,
as the declarant of that underlying statement, was not required
for it to be admitted, unless that underlying statement violated
the confrontation clause of the Sixth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights.
"Out-of-court statements offered for the truth of the
matter and asserted by a declarant who does not testify at trial
must pass two 'distinct but symbiotic' tests to be admitted."
Commonwealth v. Rand, 487 Mass. 811, 815 (2021), quoting United
States v. Brito, 427 F.3d 53, 60 (1st Cir. 2005), cert. denied,
548 U.S. 926 (2006). "First, the statement must be admissible
under our common-law rules of evidence as an exception [or
26
exemption] to the hearsay rule." Rand, supra, quoting
Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011). "Second,
the statement must be nontestimonial for purposes of the
confrontation clause of the Sixth Amendment." Rand, supra,
quoting Beatrice, supra.The victim's statement that "DB stabbed me" is admissible
under the spontaneous utterance exception to the hearsay rule.
In reviewing whether an out-of-court statement comes within this
exception, courts consider "whether there was an exciting event
that would give rise to the exception," and then "whether the
declarant displayed a degree of excitement sufficient to
conclude that [the] statement was a spontaneous reaction to the
exciting event, rather than the product of reflective thought."
See Commonwealth v. Santiago, 437 Mass. 620, 624-625 (2002).
Here, it is beyond dispute that being stabbed multiple times in
the groin and scrotum constitutes an exciting event. See
Commonwealth v. Nesbitt, 452 Mass. 236, 246 (2008) (stabbing
qualifies as exciting event). After being attacked, the victim
drove away from the scene while bleeding. He then stumbled into
the back yard of acquaintances to seek help and care, leaving
the engine of the car he had driven there still running and the
door open. On the telephone with Bizarro, when he gave the
statement, the victim sounded "flustered." Soon after, the
victim nearly lost consciousness and had to be transported
27
directly to an out-of-State hospital due to the severity of his
injuries. It was unlikely that the circumstances facing the
victim at that time were conducive to dispassionate, reflective
thought.
The victim's statement also was nontestimonial.
"Testimonial statements are those made with the primary purpose
of 'creating an out-of-court substitute for trial testimony.'"
Commonwealth v. McGann, 484 Mass. 312, 316 (2020), quoting
Wardsworth, 482 Mass. at 464. "The inquiry is objective, asking
not what that particular declarant intended, but rather 'the
primary purpose that a reasonable person would have ascribed to
the statement, taking into account all of the surrounding
circumstances.'" Commonwealth v. Imbert, 479 Mass. 575, 580
(2018), quoting Williams v. Illinois, 567 U.S. 50, 84 (2012).
The victim's statement, taken together with the rest of his
statements to Bizarro and his demeanor on the call, evinces that
he was attempting to seek aid and have his girlfriend join him
in a medical emergency. See Rand, 487 Mass. at 817 ("when
preoccupied by an ongoing emergency, a victim is unlikely to
have the presence of mind to create a substitute for trial
testimony"). The victim sounded frantic and nervous on the
telephone call to Bizarro just after being attacked while en
route to the house of an acquaintance to get help. See McGann,
484 Mass. at 318 (victim's "hysterical" statements to mother on
28
telephone calls after violent attack were nontestimonial).
Again, almost immediately after getting to the home, with blood
dripping from his waist, the victim collapsed and appeared to
lose consciousness. Given the circumstances, the victim's
statement does not demonstrate an intent to create a substitute
for trial testimony, see Rand, supra, and the judge did not err
in admitting it.
c. Other portions of grand jury testimony. The defendant
also contends that three other specific portions of Bizarro's
grand jury testimony should have been excluded because they were
speculative, lacked proper foundation, and contained
inadmissible hearsay: her statement to police that she "knew
who it was" who stabbed the victim, namely, the defendant; her
statements to police that that she "knew" the defendant was
driving a rental car on the date of the attack, "because he gets
them often"; and her statements to police concerning the
animosity between the defendant and victim as the defendant's
motive for the attack. Having reviewed the defendant's
arguments and the record, consisting of Bizarro's grand jury
testimony, her voir dire at trial, and her trial testimony, we
conclude that any error in the admission of these statements did
not create a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Desiderio, 491 Mass. 809, 817 (2023).
29
Bizarro's statements that she knew who the attacker was and
that she knew the defendant was driving a rental car based on
habit were cumulative of other, more powerful and properly
admitted testimony; namely, the victim's statement that "DB
stabbed me," see part 3.b, supra, and evidence of the
defendant's rental car agreement, see part 5, infra. See
DePina, 476 Mass. at 623-624.7
And while the portion of Bizarro's grand jury testimony
concerning animosity between the defendant and victim lacked
adequate foundation, its admission did not create a likelihood
of a miscarriage of justice. See Commonwealth v. Moffat, 486
Mass. 193, 200 (2020) ("Lay witnesses may only testify regarding
matters within their personal knowledge"). Bizarro testified to
the grand jury that she thought the defendant and victim had a
falling out because the victim told the defendant that they
could no longer be roommates; she "wasn't there" to see the
defendant's reaction, but she "kn[e]w that they argued" and that
the victim had not been answering the defendant's telephone
calls for a while. Earlier before the grand jury, Bizarro
7 We note that our current law prohibits the use of evidence
of an individual person's habit to prove action in conformity
with that habit, see Commonwealth v. Wilson, 443 Mass. 122, 138
(2004); Mass. G. Evid. § 406(b) (2023). This case law is not in
line with the Federal Rules of Evidence, see Fed. R. Evid.
§ 406. Nonetheless, we leave the consideration of our treatment
of habit evidence for another day.
30
testified that she knew the defendant and victim had been
roommates for about two months in the summer of 2020, but the
Commonwealth did not elicit, either before the grand jury or at
trial, foundational details regarding how Bizarro came to know
of the disagreement between the two men.
While the prosecutor touched upon Bizarro's grand jury
testimony regarding motive in his closing argument -- stating
that the jury had "heard . . . as to why [the victim] was
stabbed" and that it was due to the "falling out" -- he also
mentioned that the jury were instructed to scrutinize Bizarro's
testimony as an immunized witness, and that motive was not an
element of the crime. Given that at trial, Bizarro directly
contradicted this portion of her grand jury testimony, and that
the prosecutor did not overly rely on this portion of Bizarro's
testimony in making his case to the jury, we cannot say it
substantially risked a miscarriage of justice to have the jury
weigh these statements. See DePina, 476 Mass. at 624-625.
4. Direct examination of Bizarro regarding her professed
motivation to lie. At trial, when the Commonwealth asked
Bizarro about her previous identification of the defendant
during her grand jury testimony, where she had signed her
initials on still images of the surveillance video footage,
Bizarro responded that she was "doing what [she] was told by
[the victim]." The defendant objected to this answer and moved
31
to strike Bizarro's response, which was overruled. The
Commonwealth continued to ask Bizarro about whom she had
identified in the still images from the surveillance video
footage; Bizarro responded that she "was told to say that it was
[the defendant]," which the defendant did not object to. On
appeal, the defendant maintains that all of Bizarro's statements
to that effect were hearsay that "had no proper purpose in
advancing the Commonwealth's case," and even if properly
admitted, risked unfair prejudice to the defendant. See
Gonsalves, 488 Mass. at 835.
"An out-of-court statement introduced to impeach a witness,
and not to prove the truth of the matter asserted, is not
hearsay." Commonwealth v. Schoener, 491 Mass. 706, 729 (2023),
citing Commonwealth v. Denson, 489 Mass. 138, 149 (2022).
Parties may impeach their own witnesses, see Mass. G. Evid.
§ 607 (2023), including via prior inconsistent statements, so
long as a proper foundation is made. See Commonwealth v.
McAfee, 430 Mass. 483, 489-490 (1999), citing G. L. c. 233,
§ 23.
Here, the Commonwealth's line of questioning was
permissible as a means of impeaching Bizarro, as it invited
comparison of the inconsistencies between Bizarro's trial and
grand jury testimonies, exposing her lack of credibility as a
trial witness. See Sineiro, 432 Mass. at 742. The
32
Commonwealth's questions -- and Bizarro's responses --
juxtaposed Bizarro's inability to recall anything incriminating
she had previously said about the defendant, with her only
remaining memory: that of the victim's supposed coercion. The
judge did not err in allowing the Commonwealth to ask questions
that permitted the jury to "hear all of [Bizarro's] version of
events" while deciding whether her testimony at trial or her
testimony to the grand jury was the truth. Id. at 743. See
Clements, 436 Mass. at 195 (determination of reliability of
pretrial identification versus in-court disavowal is matter for
jury); Daye, 393 Mass. at 73-74 (jury may use their "common
sense" to weigh probative worth of identification, given their
observation of witness and her "rejection on the stand of [her]
prior statement").
Although no limiting instruction was provided for this
impeachment evidence, the defendant did not request one, and
there likely was no prejudice to the defendant from the
admission of the statements.8 See Commonwealth v. Lester, 486
8 Prior to Bizarro's testimony at trial, the defendant had
requested "contemporaneous" instructions on the use of prior
inconsistent statements for impeachment purposes. Immediately
prior to Bizarro's in-court testimony, the judge proceeded to
give general instructions that the jury should limit the use of
any prior inconsistent statements to consideration of a
witness's credibility. During Bizarro's direct examination, the
defendant did not request limiting instructions in response to
the Commonwealth's questions or Bizarro's answers. Prior to
33
Mass. 239, 253 (2020) (party concerned about purpose for which
impeachment testimony is admitted has burden of requesting
appropriate instruction at time statement is admitted). This is
because, if Bizarro's answers were considered substantively by
the jury, they arguably would be helpful to the defendant.
Indeed, Bizarro's trial testimony indicated that her prior
identifications of the defendant were made, at the very least,
due to the victim's suggestions, if not his directives to
outright lie. If those answers were accepted for their truth by
the jury, the defendant was not harmed, but arguably was helped
by them. See Maldonado, 466 Mass. at 759. Moreover, the
prosecutor's closing remarks invited the jury to "throw Ms.
Bizarro's testimony out the window," and nothing elsewhere in
the record indicated that either party wished the jury to
consider these statements for their truth. See Commonwealth v.
Charles, 397 Mass. 1, 7 (1986). "[W]e are substantially
confident that, if the error had not been made, the jury verdict
would have been the same." Maldonado, supra, quoting
Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998).
5. License plate testimony. At trial, a detective
testified to the process used by police in identifying the SUV
Bizarro's grand jury testimony being read in evidence, the court
gave updated instructions to the jury that they could consider
Bizarro's grand jury testimony for its substance.
34
seen in the surveillance video footage as the Ford Edge rented
by the defendant. During that testimony, the detective
indicated that he identified the license plate on the SUV in the
surveillance video footage as being from Florida, the same State
as the license plate on the defendant's rented Ford Edge. The
detective was able to identify the State of the SUV's license
plate in the video by "zooming in" on the video (close-up video)
and examining the license plate's characteristics closely.
Because the defendant did not object to the detective's
testimony at trial, we review its admission to determine whether
it created a substantial risk of a miscarriage of justice.
Commonwealth v. Grady, 474 Mass. 715, 721-722 (2016).
On appeal, the defendant argues that the Commonwealth
failed to lay a proper foundation for this portion of the
detective's testimony. Additionally, the defendant maintains
that the detective's testimony was unduly prejudicial and had
limited probative value, because the jury did not have the
close-up video images of the license plate before them.
As a condition of admissibility, the Commonwealth had to
lay a sufficient foundation to demonstrate that a reasonable
jury could find by a preponderance of the evidence that the
close-up video was a genuine representation of what the
detective claimed it to be; here, that foundational requirement
would have been met by testimony from the detective describing
35
how the video footage was able to display indicators of the
Florida license plate. See Connolly, 91 Mass. App. Ct. at 587.
The Commonwealth failed to do so; foundational details were
admitted only upon cross-examination of the detective.
While we agree that the officer's testimony lacked a proper
foundation, it nevertheless did not give rise to a substantial
risk of a miscarriage of justice. The jury here had before them
several pieces of evidence that were probative of a comparison
between the defendant's Ford Edge and the SUV in the
surveillance video footage, independent of the detective's
testimony concerning the license plate. Cf. Connolly, 91 Mass.
App. Ct. at 592-593 (defendant prejudiced by officer's testimony
concerning unavailable surveillance video, which served as only
substantive evidence of alleged crime). For instance, the
surveillance footage video and still prints of both vehicles
were entered in evidence, indicating other distinguishing marks
that the jury could compare for themselves, such as the emblems
on the front grills and stickers on the front windshields of the
vehicles. The defendant's rental agreement and a stipulation by
the defendant that he had rented the Ford Edge SUV were also
before the jury. Additionally, the lay opinion testimony
concerning the close-up video was not extensive. Cf.
Wardsworth, 482 Mass. at 476-477 (four officers' extensive lay
opinion testimony on video evidence contributed to improper
36
prejudice). The jury were able to "conduct an independent
assessment of the accuracy and reliability" of the detective's
testimony about the license plate based on the evidence before
them. See Connolly, supra at 593. Any harm to the defendant
was therefore mitigated. See Vacher, 469 Mass. at 442(erroneous admission of identification testimony harmless
because "jury were capable of drawing the same conclusion" from
photographs in evidence).
6. DNA and occult blood evidence. The defendant argues
that the judge erred in admitting DNA and occult blood evidence
gathered from his rented Ford Edge, as the results of the
forensic tests were inconclusive and bore little relevance to
issues in the case. In denying the defendant's motion in limine
to exclude the results, the judge ruled that the presence of the
defendant's DNA in the rented vehicle was probative of the
Commonwealth's theory that the defendant fled the stabbing in
the vehicle.
At trial, the defendant consistently challenged the
adequacy, thoroughness, and effort of the police investigation
in opening and closing statements, as well in cross-examination
of witnesses. In particular, the defendant focused on a knife
that had been present at the scene and had subsequently gone
missing, rendering it unavailable for forensic testing, and the
perceived failure of police to gather global positioning system
37
and cell site location information. When faced with
insinuations, the prosecution was entitled to introduce
testimony to demonstrate that forensic analysis, including DNA
testing, was performed, and that results, even inconclusive
ones, were obtained, as was the case here. See Commonwealth v.
Barnett, 482 Mass. 632, 639 (2019), citing Commonwealth v.
Mathews, 450 Mass. 858, 872 (2008) (inconclusive DNA results
admissible where defense calls into question integrity of police
investigation). The admission of this evidence was not error.
See Gonsalves, 488 Mass. at 835.
7. Prosecutor's closing argument. The defendant contends
that the prosecutor's direction in his closing argument that the
jury should rely on the surveillance video footage was improper.
See Davis, 487 Mass. at 467. In the absence of an objection, we
review for a substantial risk of a miscarriage of justice. Id.
In his closing, the prosecutor stated that the jury could
rely on the surveillance video footage, and that from the
footage the jury could discern characteristics of the
perpetrator to determine that the defendant was the perpetrator.
Specifically, the prosecution described the video as "rock-
solid," "a beautiful video . . . where you see [the defendant]
and his skinny build, and his precise hairline, his round hair,
his white skin"; "Who do you see in the video? You see [the
defendant]. . . . I suggest to you it is [the defendant] in the
38
video." "Although not dispositive, we consider the fact that
the defendant did not object to the statements at trial as 'some
indication that the tone [and] manner . . . of the now
challenged aspects of the prosecutor's argument" did not create
a substantial risk of a miscarriage of justice. Commonwealth v.
Barbosa, 477 Mass. 658, 669 (2017), quoting Commonwealth v.
Lyons, 426 Mass. 466, 471 (1998). See Commonwealth v. Kozubal,
488 Mass. 575, 590 (2021), cert. denied, 142 S. Ct. 2723 (2022).
"[C]losing arguments must be viewed in the context of the
entire argument, and in light of the judge's instruction to the
jury, and the evidence at trial" (quotation and citation
omitted). Barbosa, 477 Mass. at 670. A prosecutor's closing
argument may be based on "inferences that may reasonably be
drawn from the evidence." Commonwealth v. Lewis, 465 Mass. 119,
129 (2013), quoting Commonwealth v. Kozec, 399 Mass. 514, 516
(1987). A prosecutor can encourage the jury to use their
observations to aid them in reaching their verdict. See
Barbosa, supra. The prosecutor may also make remarks that
amount to "enthusiastic rhetoric, strong advocacy, and excusable
hyperbole" (citation omitted). Lyons, 426 Mass. at 472. If
statements fall within this permissible rhetoric, they do not
cross the line between fair and improper argument. See id.The closing argument here is distinguishable from the
opening statement at issue in Davis. In Davis, 487 Mass. at
39
469, the prosecutor told the jury in the Commonwealth's opening
that they would be able to identify the perpetrator as the
defendant based on grainy video of an individual that only
showed that the individual was a Black man with long hair in
braids or dreadlocks. The court held that the prosecutor's
suggestion that the jury could identify the defendant based on
the video was unreasonable, as the video's low resolution and
distance from the shooter did not allow the jury to discern any
features of the perpetrator's face. Id., citing Vasquez, 482
Mass. at 861.
Here, the prosecutor's remarks, while hyperbolic at times,
did not create a substantial risk of a miscarriage of justice.
The surveillance footage at issue here is of a quality such that
facial features are discernable at times in addition to other
physical characteristics, unlike the footage in Davis. The
video here is also of relatively high resolution, not
"hopelessly obscure." Given the circumstances of this specific
video footage, the prosecutor's encouragement of the jury to
identify the defendant from the video procedure was reasonable
and did not amount to a substantial risk of a miscarriage of
justice. Cf. Davis, 487 Mass. at 469.
Further, in discussing the video, the prosecutor informed
the jury that they could not base any conviction on the video
alone but had to consider the entire investigation and body of
40
evidence. See Davis, 487 Mass. at 467-468 & n.25 (no error when
prosecutor did not state jury could identify defendant from
video alone). The prosecutor pointed out that the evidence
included Bizarro's conflicting testimony regarding her
perceptions of the video and her ability to identify the
defendant in it, and whether Bizarro's testimony should be
credited was for the jury to decide. See Commonwealth v.
Holiday, 349 Mass. 126, 129 (1965) (acceptance or rejection of
oral testimony is exclusive province of jury). The prosecutor's
encouragement to the jury to weigh Bizarro's credibility and
examine the surveillance video footage was not unreasonable.
See Davis, 487 Mass. at 467; Barbosa, 477 Mass. at 670(prosecutor properly encouraged jury to use observations to
evaluate evidence in reaching verdict).
Conclusion. Finding that none of the alleged errors
warrant relief, we affirm the defendant's conviction.
Judgment affirmed.