Commonwealth v. Corliss

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SJC-11523
COMMONWEALTH vs. EDWARD CORLISS.
Suffolk. October 29, 2014. - January 20, 2015.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
Homicide. Firearms. Robbery. Practice, Criminal, View, Loss
of evidence by prosecution, Capital case. Evidence,
Firearm, Jury view, Prior misconduct, Relevancy and
materiality, Exculpatory, Expert opinion, Experiment.
Witness, Expert.
Indictments found and returned in the Superior Court
Department on February 25, 2010.
The cases were tried before Diane M. Kottmyer, J.
Stephen Neyman for the defendant.
Mindy S. Klenoff, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with her) for the
Commonwealth.
BOTSFORD, J. A jury convicted the defendant, Edward
Corliss, of murder in the first degree on the theories of
deliberate premeditation and felony-murder, and of unlawful
possession of a firearm, and robbery while armed and masked.
The defendant appeals, claiming (1) the trial judge's
2
restrictions on the defendant's attendance at a jury view were
improper; (2) it was error to admit a witness's testimony that
he saw the defendant with a gun more than one year before the
shooting in question occurred; (3) the "destruction" by police
of money seized from the defendant's residence without first
examining the money for fingerprints or deoxyribonucleic acid
(DNA) warrants dismissal of the charges against him; and (4) it
was error to exclude the video and testimony of the defendant's
expert showing that surveillance footage of the shooting
distorted the height of the perpetrator. Finally, the defendant
asks us to reverse his convictions under G. L. c. 278, § 33E.
We affirm the convictions and decline to grant relief under
G. L. c. 278, § 33E.
Background. We recite the facts as the jury could have
found them at trial, reserving some facts for later discussion.
On the afternoon of December 26, 2009, Surendra Dangol, the
victim, was working alone as a clerk at a convenience store
located on Centre Street in the Jamaica Plain neighborhood of
Boston. At approximately 2:45 P.M., a white motor vehicle
stopped on Eliot Street opposite the store, at the intersection
of Eliot and Centre Streets. A person wearing a hat and a bulky
coat, and carrying a backpack, approached the vehicle and
appeared to speak briefly with the driver, who had lowered the
window. The vehicle then backed up on Eliot Street, away from
3
the intersection with Centre Street and out of view of the
store's surveillance cameras.
Minutes later, at approximately 2:56 P.M, a person who
appeared to be the same individual wearing a bulky coat entered
the store, put the backpack on the counter by the register and
pointed a gun at the victim, who stood behind the counter. The
victim put both hands in the air. The gunman handed his
backpack to the victim, who opened the cash register and, still
at gun point, transferred the money from the register into the
backpack. Once the victim finished doing so, the gunman
continued to point the gun at the victim, who stretched both
hands out to either side. The gunman then shot the victim, and
the victim fell to the ground. The gunman took his backpack
from the counter and left the store, running down Eliot Street
in the same direction in which the white vehicle had driven in
reverse before the robbery. Seconds later, the vehicle drove
down Eliot Street toward Centre Street and the store, turned
right onto Centre Street, and drove away. The store was missing
$746 following the robbery.
A customer entered the store shortly after the shooting and
heard a gasping noise emanating from behind the counter. The
customer found the victim lying motionless and telephoned 911.
Boston police officers and paramedics arrived at the scene. The
victim was transported to a hospital, where he was pronounced
4
dead shortly after his arrival. An autopsy revealed that the
cause of death was a gunshot wound to the victim's chest.
Police secured the scene and reviewed video recorded by the
store's surveillance cameras. The police made efforts to
enhance the video of the white vehicle shown on Eliot Street
immediately before and after the robbery and shooting, but were
unable to determine the license plate or any details about the
appearance of the driver.
The police showed photographs of the white vehicle to an
automobile sales manager and a police officer with experience in
automobile accident investigations, both of whom identified it
as a Plymouth Acclaim made between 1989 and 1995. Both also
noted that the vehicle in the surveillance video had hubcaps
that were "after-market," i.e., not included with the vehicle
when it was originally manufactured, and the officer noted that
the brake light in the vehicle's rear window appeared not to be
functioning properly.
The police obtained from the registry of motor vehicles a
list of white Plymouth Acclaims registered in Massachusetts that
were made between 1989 and 1995. One such vehicle was
registered to Jacqueline L. Silvia, the defendant's wife, who
lived with the defendant on Hyde Park Avenue in the Roslindale
section of Boston. The police conducted surveillance of the
white Acclaim in the weeks following the shooting and, in early
5
January of 2010, observed Silvia driving it with the defendant
in the passenger seat.
On January 15, 2010, police sought and obtained a search
warrant for Silvia's Acclaim. Upon examining the vehicle at the
police station, the police observed that, similar to the white
vehicle in the surveillance video, the Acclaim had after-market
hubcaps, and the brake light in the rear window was close to
burning out and, thus, producing less light than intended.
The defendant also admitted to three different people that
he had committed a robbery and had shot someone at the store.
In particular, on the night of the incident, while the defendant
was visiting his brother, he pulled dollar bills of various
denominations out of his pocket and told his brother that he had
"pulled a score" during which he killed a man in the store who
had lied to him by saying that there was no money in the
register; he also stated that he had no remorse about the
incident. Later, while being held in custody before trial, the
defendant told a fellow inmate that he entered a store intending
to rob it; that he shot a man inside the store (to whom the
defendant referred as a "sand nigger"); that the vehicle used in
the offense was his wife's Plymouth; and that he disposed of the
gun used in the shooting along Revere Beach. The defendant told
another inmate that he robbed the store while wearing a wig and
a puffy outfit, and shot the store clerk; he killed the clerk,
6
he explained, to ensure that there would be no witnesses to the
robbery. The defendant added that he had disposed of the gun
used in the shooting in the water. In addition, fearing
Silvia's possible testimony against him in court, the defendant
asked the inmate to kill Silvia upon the inmate's release from
prison, and gave him details of Silvia's whereabouts and
routines to facilitate her killing.1
Based on information they had received during the course of
their investigation, the police searched a rocky portion of
Revere Beach several times. During their third search police
found a handgun in the sand. Ballistics testing confirmed that
the bullet removed from the victim's body was fired from this
gun. The Commonwealth also presented evidence that the
defendant had told his brother that he often carried a gun for
protection that he referred to as his "buddy." Finally, there
was evidence that, prior to the robbery of the store, the
defendant had told his brother in December of 2009 that he was
experiencing financial trouble due to a decrease in his Social
Security benefits.2
1
The defendant also asked the inmate to kill a neighbor and
a friend of the defendant, both of whom the defendant believed
had provided testimony against him.
2
The defendant also told his parole officer that his Social
Security payments decreased in early December of 2009 despite an
increase in his rent obligation.
7
Discussion. 1. Jury view. The defendant argues that the
trial judge erred in denying his request to attend a view that
would be separate from, but identical to, the view taken by the
jury. Acknowledging that the judge did allow him to attend the
jury view, the defendant further claims that the judge erred in
confining him to a vehicle during the view. Finally, the
defendant relies on Commonwealth v. Morganti, 455 Mass. 388, 403
n.9 (2009), S.C., 467 Mass. 96 (2014), to argue that his
presence was required throughout the jury's view because, he
claims, the view involved an experiment or demonstration, and in
any event, the view could have been avoided. There was no
error.
The background facts are the following. The Commonwealth's
pretrial motion for a view by the jury was allowed without
objection. Prior to the view, the defendant wavered as to
whether he wished to be present for the jury's view or to attend
a separate view, but ultimately indicated a preference for the
latter. The judge stated that under existing case law, the
defendant had no constitutional right to be present during the
view. Furthermore, the judge noted that there was some
information available indicating that the defendant had plotted
to escape from custody and had spoken about killing prison
guards, and that this evidence dictated the need for security
personnel to accompany the defendant on any separate view. The
8
judge was skeptical about the feasibility of conducting a
separate view for the defendant, given the shortage of security
personnel available, but indicated that she would look into
whether a private view for the defendant was practicable. The
judge thereafter did not mention the issue of a separate view,
but ultimately ruled, based on security concerns, that the
defendant could not be present with the jury during their view,
but that security personnel would transport the defendant in a
separate vehicle and the vehicle would be positioned to allow
the defendant to observe each location on the jury view to the
extent possible. The judge prohibited the defendant from
leaving the vehicle during the view, but provided him with a
"notice of view details," drafted by the Commonwealth, which
described "precisely what it is that the Commonwealth [pointed]
out to the jurors."
The jury went on the planned view, during which counsel for
the Commonwealth and for the defendant showed jurors the area
surrounding the store, the interior of the store, the exterior
of the defendant's residence, Sylvia's white Acclaim, a rock
jetty along Revere Beach, and the exterior of a business
establishment in Revere. The defendant was unable to view the
interior of the store, but the judge noted her expectation that
the Commonwealth would introduce depictions of relevant aspects
of the store at trial.
9
"'We have held repeatedly that a defendant does not have a
right to be present during a jury view' under either the Sixth
or the Fourteenth Amendment to the United States Constitution or
art. 12 of the Massachusetts Declaration of Rights." Morganti,
455 Mass. at 402-403, quoting Commonwealth v. Gordon, 422 Mass.
816, 849 (1996). This is so because a "view is not part of the
trial," Commonwealth v. Gomes, 459 Mass. 194, 199 (2011), due to
the fact that, "[a]lthough what is seen on the view may be used
by the jury in reaching their verdict, in a 'strict and narrow
sense a view may be thought not to be evidence.'" Id., quoting
Commonwealth v. Curry, 368 Mass. 195, 198 (1975). See Berlandi
v. Commonwealth, 314 Mass. 424, 451 (1943); Commonwealth v.
Snyder, 282 Mass. 401, 412-413 (1933), aff'd, 291 U.S. 97
(1934). Accordingly, it was not required that the defendant
observe what the jury saw on their view, either during the view
itself or on a separate occasion. Rather, a trial judge has
discretion whether to permit a defendant to be present at a jury
view, "may consider issues of security in deciding whether to
permit a defendant to be present," as the judge did here, and
"may impose reasonable conditions or restrictions" on a
defendant attending such a view. See Commonwealth v. Evans, 438
Mass. 142, 151 (2002), cert. denied, 538 U.S. 966 (2003). Given
the security risk posed by the defendant, the judge's decision
to confine him to a police vehicle during the jury view was
10
reasonable and well within her discretion. See Commonwealth v.
Mack, 423 Mass. 288, 291 (1996) (affirming trial judge's
decision that defendant could attend jury view only if he
remained "in a police car and some distance away from the
jury").3
2. Admission of evidence that the defendant possessed a
firearm. The defendant challenges the trial judge's decision to
allow a witness, Robert Dauteuil, to testify that sixteen months
before the store robbery and shooting, he saw the defendant with
a firearm that the defendant proceeded to load with bullets. We
disagree.
The pertinent background facts are these. Before trial,
the Commonwealth filed a motion to permit Dauteuil, a friend of
3
The defendant's reliance on Commonwealth v. Morganti, 455
Mass. 388, 403 n.9 (2009), S.C., 467 Mass. 96 (2014), is
misplaced. That footnote states, "Because no demonstration was
performed during the view and the automobile [that was a subject
of the jury view] plainly could not be brought into the court
room, we need not consider whether the defendant's presence
would be required if there had been a demonstration or if the
view could have been avoided." This statement concerned the
specific facts of the Morganti case, where the automobile the
jury were viewing featured, in the front passenger seat, a
mannequin that had a rod through its head to demonstrate "the
path of travel of the bullet that killed the victim." Morganti,
supra at 402. There were no such unusual features of the jury
view in this case -- it was, as the judge remarked, a "classic
view," in which counsel for the Commonwealth and the defendant
pointed out particular locations and features to the jury
without comment. The Morganti footnote should not be understood
to suggest that whenever the defendant does not accompany the
jury on a view, the trial judge is obligated to make a specific
determination whether the view could have been avoided by
introduction of evidence that would provide the same
illustrative information.
11
the defendant, to testify as just described. The Commonwealth
sought to admit this testimony, in part, because, in the
Commonwealth's view, it would allow the jury to infer that the
gun seen by Dauteuil was the murder weapon. The judge noted the
relevance of evidence showing a defendant "to have knowledge of
and the ability to use firearms," and allowed the Commonwealth's
motion, concluding the probative value of Dauteuil's proposed
testimony outweighed its prejudicial effect.
Dauteuil testified at trial that he saw the defendant
holding a handgun and putting bullets into the clip of the gun
at the defendant's home in August of 2008. He stated that the
gun was black and that the bullets, of which there were between
six and eight, were silver and "a little bigger" than a .22
caliber bullet.4 Dauteuil conceded that he was "not familiar
with guns," but stated that he was sufficiently familiar with
them to recognize the size of the bullets. Upon being shown a
photograph of the gun retrieved from Revere Beach, Dauteuil
stated that the gun the defendant had in 2008 was similar in
size and shape to the gun in the photograph, but he stopped
short of saying that the two guns were the same. The defendant
objected.
4
Later, the Commonwealth introduced evidence that the
murder weapon took bullets that were larger than .22 caliber
bullets.
12
At the time Dauteuil testified about the gun, the judge
instructed the jury that they were precluded from considering
the testimony as evidence that the defendant committed a crime
by possessing a firearm in August of 2008, or from considering
the testimony as evidence of the defendant's bad character or
propensity to commit crimes. She stated that they could
consider Dauteuil's testimony, if they deemed it credible, only
to determine whether the defendant had access to a firearm and
knowledge of how to operate a firearm at the time of the
shooting in the store. The judge repeated these instructions
during her final charge.
"It is well settled that the prosecution may not introduce
evidence that a defendant previously has misbehaved, indictably
or not, for the purposes of showing his bad character or
propensity to commit the crime charged, but such evidence may be
admissible if relevant for some other purpose." Commonwealth v.
Helfant, 398 Mass. 214, 224 (1986), and cases cited. As the
trial judge recognized, one such purpose is "to show that the
defendant has the means to commit the crime." Commonwealth v.
Ridge, 455 Mass. 307, 322 (2009). "The judge, within sound
discretion, must consider whether the probative value of such
evidence is outweighed by potential prejudice," Commonwealth v.
Gollman, 436 Mass. 111, 114 (2002), and the judge's
determination is "not disturbed absent palpable error."
13
Commonwealth v. McGee, 467 Mass. 141, 156 (2014), quoting
Commonwealth v. Spencer, 465 Mass. 32, 48 (2013). See
Commonwealth v. Ashman, 430 Mass. 736, 744 (2000) (admission of
"[e]vidence that a defendant possessed a weapon that could have
been used to commit a crime" to show that defendant had means to
commit crime is left to discretion of trial judge whose decision
will be accepted on review except for palpable error).
We discern no error in the admission of Dauteuil's
observations of the defendant's possession of a gun, even though
they occurred more than one year before the shooting at the
store. The testimony was relevant to show that the defendant
had the means to perpetrate the crime. See McGee, 467 Mass. at
156-157. See also Ridge, 455 Mass. at 322-323 (no error in
admitting "evidence of the defendant's access to, and knowledge
of, firearms and bullets" where trial judge "instructed the jury
that the evidence was only to show that the defendant had some
familiarity with firearms and not that he was a bad person").
As for the sixteen-month interval between Dauteuil's
observations and the shooting, "[p]roximity to the crime in
point of time is an element to be considered in viewing the
probative value of testimony, and it is a factor which should be
left largely to the discretion of the judge," Commonwealth v.
Watkins, 375 Mass. 472, 491 (1978), quoting Commonwealth v.
Russell, 2 Mass. App. Ct. 293, 295 (1974), although it must "not
14
be too remote in time." Commonwealth v. Butler, 445 Mass. 568,
574 (2005), quoting Commonwealth v. Barrett, 418 Mass. 788, 794
(1994). Here, in exercising her discretion to admit the
testimony, the judge indicated that the temporal remoteness of
Dauteuil's observations did not preclude their admission because
once the defendant knew how to operate a gun, he would retain
such knowledge over time. Moreover, as stated, the judge
instructed the jury twice that they could use this testimony
only to determine whether the defendant had access to a firearm
and knowledge of how to operate a firearm, and that they could
decide "what weight, if any" to give to Dauteuil's testimony.
Cf. Helfant, 398 Mass. at 226-227, 228 n.13 (evidence of
defendant's prior misbehavior admitted on issue of defendant's
intent and state of mind; where such evidence is relevant, jury
may consider time interval between such incidents as bearing on
weight to be given such evidence). See Commonwealth v.
McLaughlin, 352 Mass. 218, 221, 229-230, cert. denied, 389 U.S.
916 (1967) (no error in admitting guns found in possession of
defendant approximately one year after murder for which he was
indicted).
The defendant argues that in addition to the question of
remoteness, Dauteuil's testimony, in conjunction with later
testimony by a police ballistician that the murder weapon took
bullets larger than .22 caliber bullets, created significant
15
prejudice because it improperly linked the gun observed by
Dauteuil with the murder weapon.5 However, "evidence of '[a]
weapon that could have been used in the course of a crime is
admissible'" to show that the defendant had the means to commit
the crimes alleged, "even without direct proof that the
particular weapon was in fact used in the commission of the
crime" (internal quotations omitted). McGee, 467 Mass. at 156,
quoting Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). See
McGee, supra at 156-157 (witness's testimony concerning gun seen
in defendant's possession prior to shooting was admissible where
witness's description of gun was consistent with other testimony
indicating nature of murder weapon, and probative value of
testimony outweighed its prejudicial effect; it was for jury to
determine "any link between the gun [defendant] was said to
possess and the one used to shoot the victim"). See also
Ashman, 430 Mass. at 744. Moreover, the judge's limiting
instructions permitted the jury to use Dauteuil's testimony only
5
Dauteuil's testimony that the gun the defendant possessed
in 2008 took bullets larger than .22 caliber bullets is
consistent with the ballistician's description of the gun used
in the shooting.
The defendant argues that there was no foundation for
Dauteuil's testimony about the size of the bullets he saw in the
defendant's possession. This argument appears to relate to the
witness's statement on cross-examination that he was "not
familiar with guns." A witness, however, need not have
familiarity with firearms to testify about details of a gun seen
in the possession of the defendant on an earlier occasion. See
Commonwealth v. Watkins, 375 Mass. 472, 491 (1978).
16
to determine whether the defendant had access to a firearm and
knowledge of how to operate a firearm, despite the
Commonwealth's contention that the testimony was admissible to
show that the gun Dauteuil observed was, in fact, the murder
weapon. We presume the jury followed these instructions, and
thus the defendant received the benefit of limits greater than
those to which he was entitled. See Commonwealth v. Auclair,
444 Mass. 348, 358 (2005). His argument of prejudice fails.
3. Destruction of money seized from the defendant's
residence. The defendant argues that the failure of the police
to retain and segregate the money seized from his residence
precluded him from establishing that the victim's fingerprints
or DNA were not on this money and, thus, denied him a fair
trial, requiring dismissal of the charges against him.
Testimony at trial revealed that, based on information
gathered during the course of their investigation, police sought
and obtained a search warrant to search the defendant's
apartment. During the search, the police seized $320 -- two
fifty-dollar bills and eleven twenty-dollar bills -- that were
on top of the kitchen table in the apartment. The defendant and
the Commonwealth stipulated that this money had been in Silvia's
possession immediately prior to being placed on the table. The
inference the Commonwealth sought to have the jury draw was that
these bills were some of the proceeds of the robbery.
17
Sergeant Detective Michael Devane of the Boston police
department testified at trial that it is police policy to
document seized money and then either to hold it as evidence or
submit the money to the department's cashier's office for
deposit into a bank account. Upon seizing the bills from the
defendant's apartment, the police photographed the money and
recorded the serial numbers of each bill, but did not test any
of the money for fingerprints or DNA. Ultimately, according to
Devane, the seized money was deposited in a bank account
consistent with police department policy. Cross-examination of
Devane elicited that the police did not retain and segregate the
seized bills as evidence because the police decided that the
physical form of the bills did not have evidentiary value.
Before trial, the defendant moved to exclude any evidence
concerning the seized bills as a sanction against the
Commonwealth for "destroying" the money. The judge denied the
motion and allowed the Commonwealth to introduce the evidence,
concluding that there was no "showing that the Commonwealth
acted deliberately or in bad faith." The judge also noted that
it was speculative to suggest that the seized bills would have
yielded something of evidentiary value.
"A defendant who seeks relief from the loss or destruction
of potentially exculpatory evidence has the initial burden . . .
to establish a reasonable possibility, based on concrete
18
evidence rather than a fertile imagination, that access to the
[evidence] would have produced evidence favorable to his cause"
(citations and quotations omitted). Commonwealth v. Cintron,
438 Mass. 779, 784 (2003). See Commonwealth v. Neal, 392 Mass.
1, 12 (1984). In other words, "the defendant must establish a
reasonable possibility that the lost or destroyed evidence was
in fact exculpatory." Commonwealth v. Kee, 449 Mass. 550, 554
(2007). If the defendant does not satisfy this initial burden,
"there is no need to engage in [a] balancing test," Commonwealth
v. Williams, 455 Mass. 706, 718 (2010), weighing "the
Commonwealth's culpability, the materiality of the evidence, and
the prejudice to the defendant in order to determine whether the
defendant is entitled to relief." Id.
The defendant's argument fails. Assuming that testing the
bills in question yielded no evidence of the victim's
fingerprints or DNA, the exculpatory value of such a result
appears to be slim to none. The victim may well not have
touched every bill of the approximately $750 stolen in the
robbery -- the surveillance video of the actual robbery makes it
clear that the victim transferred the money in the cash drawer
by hurriedly lifting groups or wads of bills together and
stuffing them into the robber's backpack -- and therefore the
absence of the victim's fingerprints or DNA on the seized bills
would not indicate that the bills were not the proceeds of the
19
robbery. Moreover, the evidence is undisputed that the
defendant's wife had held and handled the money in question
after the robbery, creating the real possibility that any
fingerprints or DNA that might have been on the bills before
would not be identifiable. See Commonwealth v. Walker, 14 Mass.
App. Ct. 544, 548-549 (1982) ("absence of the defendant's
fingerprints on the [destroyed evidence] would not have proved
his innocence" because "any fingerprints may have been destroyed
by the handling of others" before police obtained evidence).6
Because the defendant has failed to satisfy his initial
burden of establishing "a reasonable possibility" that "access
to the [seized money] would have produced evidence favorable to
his cause," we need not balance the Commonwealth's culpability,
the evidence's materiality and the prejudice to the defendant.
See Commonwealth v. Clemente, 452 Mass. 295, 309 (2008), cert.
denied, 555 U.S. 1181 (2009), quoting Kee, 449 Mass. at 554.
See also Williams, 455 Mass. at 718. The judge did not abuse
her discretion in allowing the admission of evidence concerning
the seized money.
4. Exclusion of images produced by the defendant's expert
witness. The defendant argues that the judge's exclusion of a
6
Moreover, it goes without saying that bills held in the
cash register of a convenience store are likely to have been
handled by a variety of individuals in addition to the
convenience store clerk, including the customers who transferred
the bills in exchange for the goods they purchased.
20
video that consisted of three images created by his expert
witness, Michael Garneau, and of Garneau's testimony regarding
the video, was reversible error because it infringed upon his
right to present a defense. To create the images, the
defendant's expert had superimposed a height chart on top of
three different images of the perpetrator captured by the
store's surveillance cameras during the robbery. The purpose --
at least as suggested by defense counsel in a voir dire of the
expert held before he testified at trial -- was to show that the
surveillance video footage distorted the perpetrator's height.7
Before she ruled on the admissibility of the superimposed
video images, the judge conducted a voir dire hearing of Garneau
to determine the method by which he had created the images and
his proposed testimony.8 Garneau testified that he had extracted
three still images depicting the perpetrator in the store during
the robbery from the store's surveillance footage. In August,
7
In his opening statement, defense counsel had suggested to
the jury that they would hear from the expert, Michael Garneau,
that the perpetrator of the robbery was five feet eleven inches,
whereas the defendant was only five feet five inches. At the
time of the voir dire examination of Garneau, however, defense
counsel argued that the reason Garneau's testimony was important
was not to indicate the perpetrator was any particular height.
Rather, the reason counsel advanced was that one could not make
an accurate estimate of the perpetrator's height from the video
footage because the placement of the surveillance camera on the
ceiling and the angle of its focus meant that the appearance of
the perpetrator's height was distorted and changed depending on
where the perpetrator was standing in relation to the camera at
any given point in time.
8
Garneau's qualifications as a video editing expert were
not disputed and were not at issue during the voir dire.
21
2011, he went to the store and, with the help of the store's
owner, adjusted the focus of one of the surveillance cameras
mounted to the ceiling of the store to replicate as closely as
possible the angle of the still images. He then filmed a height
chart attached to a metal stand that he had positioned in the
"general area" of the three spaces occupied by the perpetrator
of the robbery in the three 2009 surveillance images.
Thereafter, with the help of a video compositing program, he
laid the video of the height chart on top of the three original
surveillance images of the perpetrator. The resulting video
superimposed the lines of the height chart on the perpetrator as
depicted in the original surveillance images, with each line
representing one inch in height. In two of the superimposed
surveillance images, the perpetrator appeared to measure five
feet five inches on the height chart, and the third image showed
the perpetrator's height to measure five feet nine inches.
During his voir dire testimony, Garneau acknowledged that the
interior of the store had changed in the interval between the
2009 robbery and August, 2011, and he could not say whether the
store's ceiling had been renovated. The store's video
surveillance system had changed in that period as well.
Over the defendant's objection, the judge excluded the
video of the perpetrator with the superimposed height chart on
the grounds that it would not be helpful to the jury. She
22
appeared to believe (perhaps based on the defense counsel's
opening) that the defendant sought to use the superimposed
images to argue that the perpetrator was a particular height,
and she opined that the expert's testimony would be misleading
on that point. She also indicated that there was insufficient
foundation that the height chart was placed on a floor that was
on the same level as the floor during the robbery, and noted
that there had been "a change in the ceiling [at the store] with
respect to the camera."
The judge, however, did allow admission of Garneau's video
showing only the height chart, without any image of the
perpetrator.9 Furthermore, the judge allowed Garneau to testify
to the distorting effect of camera angles and to the "fallacy of
using a fixed object like the bolt [on the doorframe of the
store visible in the surveillance footage, see note 9, supra] to
determine height" in light of the angle of the camera.
Thereafter, the defendant called Garneau as a witness at trial,
and his testimony covered both of these points.
"The permission to perform or make experiments or
illustrations in the presence of the jury rest[s] in the sound
judicial discretion of the trial judge." Commonwealth v. Chin
9
In admitting this video, the judge reasoned that the
height chart provided a measurement of distance from the floor
of the store as it existed just prior to trial and, given that
the Commonwealth had introduced into evidence a measurement from
that same floor to a bolt on the store's doorframe, fairness
required the admission of the height chart video.
23
Kee, 283 Mass. 248, 260 (1933), and cases cited. See
Commonwealth v. Makarewicz, 333 Mass. 575, 592 (1956).
"Although it must appear that the conditions or circumstances
were in general the same in the illustrative case and the case
in hand, . . . the determination whether the conditions were
sufficiently similar to make the experiments of any value in
aiding the jury is a matter resting in the sound discretion of
the judge" (citation omitted). Id. at 592-593, quoting Guinan
v. Famous Players-Lasky Corp., 267 Mass. 501, 521-522 (1929).
See Commonwealth v. Flynn, 362 Mass. 455, 473 (1972), quoting
Field v. Gowdy, 199 Mass. 568, 574 (1908) (trial judge has
discretion to determine "[w]hether the conditions were
sufficiently similar to make the . . . [experiment or
demonstration] of any value in aiding the jury to pass upon the
issue submitted to them"). A judge's decision concerning the
similarity of the experiment's conditions to those of the
original incident "will not be interfered with unless plainly
wrong." Flynn, supra, quoting Field, supra.
Evidence at trial supported the judge's finding that there
was an insufficient showing that the floor level and
surveillance camera positioning at the store were the same
during Garneau's videotaping and the robbery. Although it would
not have been an abuse of discretion for the judge to have
permitted the introduction of the superimposed video and
24
accompanying explanation by the expert, we cannot say it was an
abuse to exclude it.10 More importantly, even assuming for
argument that the exclusion constituted error, it was not
prejudicial because Garneau was permitted to, and did, testify
concerning the purpose of the height chart and to the
substantive points that the video was intended to illustrate:
the inaccuracy of using an elevated camera angle to judge the
height of something in relation to the height of a fixed object,
and a camera angle's distorting effect on the images the camera
captures. See Commonwealth v. Smith, 460 Mass. 385, 398 (2011)
(exclusion of evidence did not prejudice defendant where it was
cumulative of admitted evidence). These concepts were not of
such complexity that the excluded video was needed to elucidate
Garneau's testimony for the jury. Moreover, in his closing, the
prosecutor did not seek to argue that the surveillance video
demonstrated that the perpetrator's height corresponded to that
10
The defendant cites several cases to support his argument
that any differences between the conditions of an experiment and
the conditions of the original incident "affect the weight of
the [experiment] evidence and not its admissibility." See
Calvanese v. W.W. Babcock Co., 10 Mass. App. Ct. 726, 730-731
(1980); Bechtel v. Paul Clark, Inc., 10 Mass. App. Ct. 685, 688-
689 (1980). See also Commonwealth v. Ellis, 373 Mass. 1, 5
(1977). In each of these cases, however, the trial judge had
exercised discretion to allow evidence of an experiment.
Accordingly, the defendant's argument does not alter the legal
landscape that affords a trial judge discretion to exclude
evidence of an experiment due to the different conditions
present during the experiment. See Commonwealth v. Flynn, 362
Mass. 455, 473 (1972).
25
of the defendant. The judge's exclusion of the expert's video
did not infringe on the defendant's right to present a defense.
5. G. L. c. 278, § 33E. After review of the entire record
pursuant to G. L. c. 278, § 33E, we find no basis on which to
grant the defendant relief.
Judgments affirmed.