Commonwealth v. Heath

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15-P-227 Appeals Court
COMMONWEALTH vs. CARROLL N. HEATH.1
No. 15-P-227.
Essex. February 11, 2016. - April 26, 2016.
Present: Kafker, C.J., Rubin, & Agnes, JJ.
Practice, Criminal, Loss of evidence by prosecution,
Preservation of evidence, New trial. Evidence,
Exculpatory, Videotape, Relevancy and materiality.
Complaint received and sworn to in the Newburyport Division
of the District Court Department on May 30, 2013.
The case was tried before Allen G. Swan, J., and a motion
for a new trial was heard by him.
Christine DeBernardis for the defendant.
Catherine P. Sullivan, Assistant District Attorney, for the
Commonwealth.
KAFKER, C.J. The defendant, Carroll N. Heath, was
convicted of assault and battery on a police officer pursuant to
1
The defendant uses the name Carroll Heath-Willis in his
pleadings, but as is our custom, we take the defendant's name as
it appears on the complaint. See Commonwealth v. Supplee, 45
Mass. App. Ct. 265, 265 n.1 (1998).
2
G. L. c. 265, § 13D, and also of disturbing the peace.2 He
appeals the judge's denial of his motion for a new trial on the
assault and battery charge, claiming that he was denied due
process of law by the Commonwealth's failure to preserve a video
recording of incidents in the booking room of the Haverhill
police station that led to the assault and battery charge.3 We
reverse.
1. Background. a. The events of May 29. On May 29,
2013, the defendant was arrested for disturbing the peace. He
had entered the emergency room at Merrimac Valley Hospital in
Haverhill, demanded a sandwich, a shower, and that someone do
his laundry, and let loose a tirade of racist, sexist, and other
offensive comments at medical personnel when they told him that
he must first see a physician before they could provide him with
food and that they "did not have a shower in the emergency
department." Haverhill police Officer Dennis Moriarty, who was
called to the hospital, tried to calm the defendant and escorted
2
The defendant's conviction of disturbing the peace was
placed on file with the defendant's consent and is not before
us. See Commonwealth v. Lites, 67 Mass. 815, 816 (2006). The
defendant was also charged with threatening to commit a crime,
but he was found not guilty on that charge.
3
The defendant has been represented by at least three
different attorneys over the course of these proceedings. We
refer to them as pretrial counsel (who filed the motions to
produce and preserve the booking video), trial counsel, and
appellate counsel (who represented the defendant in connection
with his motion for a new trial and on appeal before this
court).
3
him from the hospital building while the defendant verbally
threatened to hack him to pieces with a machete. The defendant
then proceeded to a neighboring property, and Moriarty was
called to that location by a resident when the defendant refused
to leave. Moriarty then arrested the defendant and took him to
the police station for booking.
Officer Moriarty testified at trial that because the
defendant "needs crutches to walk . . . [and] has no use of his
legs," Moriarty did not place the defendant in handcuffs at the
time of the arrest. Moriarty testified that he asked the
defendant during booking to remove various articles from his
person, including a baseball cap, socks, and shoes, and Moriarty
informed the defendant that if he did not remove the items
voluntarily, Moriarty would do it himself. Moriarty testified
that when the defendant refused to remove the aforementioned
articles, Moriarty removed the defendant's cap. The defendant
then forcefully struck Moriarty in the chest. Moriarty
testified that he was wearing a "bullet resistant trauma vest[]"
at the time, and the punch left "no marks" and "didn't require
any type of medical attention." Moriarty testified that he and
two other officers subdued the defendant and "dragged him into
his cell."
During Officer Moriarty's testimony, he was asked about
video recording in the booking room. On direct examination, he
4
testified that there was a "means of recording" what was going
on in the booking room and that he did not know "who [was] . . .
in charge of maintaining" that recording device. He also
testified that he was not permitted to view the video recording
nor did he have access to it. On cross-examination, Moriarty
testified that "there were security cameras there that
essentially captured the entire booking process." He also
testified on cross-examination that he did not "attempt to talk
to any other officers, superiors or other supervisors . . . to
obtain that booking video."
During the charge conference, the defendant requested an
instruction on missing evidence, i.e., the booking video, which,
he informed the judge, had been requested and had been the
subject of a motion to preserve. It was clear at this time that
the judge, the prosecutor, and trial counsel understood that the
video had not been preserved.4 The defendant proposed that the
judge instruct the jury as follows:
4
Although the details of the discussion regarding the jury
instruction are marked as inaudible, the issue is not in doubt.
Trial counsel argued in his opening statement that "the
Haverhill [p]olice actually have the ability to videotape this
process. They actually get this on to get the actual booking
where this alleged incident occurred. You're not going to see a
videotape, ladies and gentlemen of the jury." The motion to
preserve the booking video, filed by pretrial counsel, had been
allowed on June 27, 2013, without opposition from the
Commonwealth. The prosecutor had raised the issue of the
missing evidence instruction to the judge before jury
5
"[I]f the Commonwealth, . . . could have gathered and
produced particular evidence that would have been helpful
to your deliberations in this matter, it is logical to
assume that the government would naturally offer that
evidence at trial.
"If then, without explanation, . . . that evidence is
not presented at trial, you may infer that the potential
. . . evidence would have been unfavorable to the
Commonwealth."
The judge denied the request and the defendant objected.
In closing, trial counsel conceded the disturbing the peace
charge but contested the assault and battery, arguing:
"[Y]ou heard that the whole booking process is
recorded. There's video cameras that record this. Officer
Moriarty knows that these booking videos can be used as
evidence. . . . But there's no booking video. We only
know what happened from Officer Moriarty's testimony. We
don't have a booking video to either corroborate his story
or dispel it. But don't you find it a little problematic
if the Commonwealth is trying to get a conviction and they
have a booking video that backs his story up? You should
be watching it right now. You should have already watched
it. But you don't have it here today."
The prosecutor ended his closing by addressing the booking
video:
"I'd simply ask you not [to] speculate as the Judge
will instruct you about what was in the video or why
empanelment. On July 21, 2014, at an evidentiary hearing on the
defendant's motion for a new trial, the prosecutor told the
judge that on the date the defendant's motions to produce and
preserve the booking video had been allowed, "[she] did sign the
conference report with [defendant's pretrial counsel], and [she]
did agree that the booking video would be provided." The motion
judge, who was also the trial judge, explained that he had given
trial counsel "full leeway without any objection from the
District Attorney to argue to the jury the absence of a video in
the booking room." The issue for the judge was not whether the
video had been made and not preserved but who was responsible
for its deletion.
6
there's no video or anything like that. And simply confine
yourself to the evidence before you. And the evidence
before you is the officer told you he didn't know how to
get the video. . . . Beyond that, there's no evidence
before you."
b. New trial motion. The defendant filed a motion for new
trial, contending that he was denied due process of law by the
Commonwealth's failure to preserve the booking video. The
motion was supported by affidavits from the defendant and his
pretrial counsel. The motion judge (who was also the trial
judge) conducted an evidentiary hearing. The judge found that
"A pretrial hearing was held on June 3, [2013,] and
another on June 27. At the second pretrial, the
defendant's court-appointed attorney filed a discovery
motion requesting that the police booking video be
preserved. The court allowed the motion, and defense
counsel agreed in open court to contact the police
department directly to obtain the video.
"While apparently voicemail messages were left by
counsel for Haverhill Police Sergeant Brian Smith[,] . . .
Smith did not receive them, due in part . . . to problems
in the department's telephone system . . . ."
The judge credited Sergeant Smith's testimony at the
evidentiary hearing to the effect that he did not speak to
pretrial counsel about the video until he saw him at Haverhill
District Court on an unrelated matter in mid-July, 2013. When
Smith checked on the booking video, he discovered that it had
been erased. Smith testified that he had never received a copy
of the motion to preserve the video. The judge found:
"Even assuming the video to be potentially exculpatory
-- something now we will never know -- and material, there
is no culpability on the part of the Commonwealth. The
7
request to preserve the video was not made until 29 days
after the recording of the assault in the booking room was
made.[5] Given that the video system's self-purging
mechanism operates 30 days or sooner after recording, the
request when made may have already been untimely.
Moreover, since counsel had assumed the responsibility of
obtaining the video and, by his own calculation, did not
make contact with the officer responsible for evidence
preservation until 33 days by telephone (July 1) and 43
days in person (July 11) after the recording was made (May
29), the Commonwealth cannot be charged with negligent or
intentional culpability in the destruction of the video."
The judge ultimately found that "any prejudice to the defendant
was obviated by allowing defense counsel 'to question about and
comment upon the Commonwealth's failure to produce the
videotape.' Commonwealth v. Cameron, 25 Mass. App. Ct. 538, 549
(1988)."
2. Denial of the motion for new trial. a. Standard of
review. "It is well established that, '[i]n reviewing the
denial or grant of a new trial motion, we examine the motion
judge's conclusion only to determine whether there has been a
5
The judge appears to refer to the filing of the motion to
preserve, which he referred to as "the request to preserve."
During the hearing, appellate counsel challenged the judge's
calculation that thirty days had elapsed between the recording
of the booking video and the date on which pretrial counsel had
left his first voice mail message for Sergeant Smith, claiming
that the judge's calculation was off by one day. The
Commonwealth concedes that the defendant's calculation was
probably correct. Because Officer Moriarty was not first
dispatched until about 10:00 P.M. on May 29, 2013, if pretrial
counsel left his first voice mail message for Sergeant Smith
before that time on June 28, less than thirty full days would
have elapsed between that voice mail message and the booking
room incident. Regardless of who is correct, our decision in
this case does not rely on that distinction.
8
significant error of law or other abuse of discretion.'"
Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting from
Commonwealth v. Wright, 469 Mass. 447, 461 (2014). We typically
"grant special deference to a decision on a motion for a new
trial of the judge who was also the trial judge." Commonwealth
v. Tucceri, 412 Mass. 401, 412 (1992). Nevertheless, because
the defendant's "new trial claim is constitutionally based, this
court will exercise its own judgment on the ultimate factual as
well as legal conclusions." Id. at 409. Commonwealth v. Cohen
(No. 1), 456 Mass. 94, 105 (2010).
b. Test to determine remedy for the loss of the video. In
Commonwealth v. Williams, 455 Mass. 706, 716-717 (2010), quoting
from Commonwealth v. Cintron, 438 Mass. 779, 784 (2003), the
Supreme Judicial Court stated:
"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 evidence rather than a
fertile imagination, that access to the [lost or destroyed
evidence] would have produced evidence favorable to his
cause. . . . If he meets his initial burden, a balancing
test is employed to determine the appropriateness and
extent of remedial action. The courts must weigh the
culpability of the Commonwealth, the materiality of the
evidence, and the potential prejudice to the defendant."6
6
In some circumstances, a defendant is not required to meet
the initial burden: "[W]here the Commonwealth has acted in bad
faith or recklessly, resulting in the loss or destruction of
evidence, the defendant may be independently entitled to a
remedy even without meeting [this initial burden]." Williams,
9
We apply this analysis to the case before us.
i. Defendant's initial burden. Although the judge
assumed that the video would have been potentially exculpatory
to move on to the balancing test, we conduct our own analysis of
whether the defendant met his initial burden as a matter of law.
The defendant's initial burden to establish by means of
"concrete evidence" that the destroyed evidence was exculpatory
does not require definitive proof of what the video did, in
fact, show; "because the [video has] been destroyed, it is no
longer possible to determine whether the defendant would have
obtained any evidence of an exculpatory nature had the [video]
been made available to him for inspection or examination."
Commonwealth v. Neal, 392 Mass. 1, 12 (1984). The Supreme
Judicial Court reiterated this point in Williams, supra at 714-
715, quoting from Neal, supra:
"To require the defendant at this stage to prove that
the [lost or destroyed evidence at issue] [was] in fact
exculpatory would . . . convert the [Commonwealth's duty to
disclose exculpatory evidence] . . . into an empty promise,
easily circumvented by suppression of evidence by means of
destruction rather than mere failure to reveal" (quotations
omitted).
455 Mass. at 718. In the instant case, while the judge did not
specifically reach the issue of bad faith in his order denying
the defendant's motion for a new trial, his findings do not
support the view that the Commonwealth exhibited bad faith in
failing to prevent the deletion of the booking video.
10
The "reasonable possibility, based on concrete evidence"
formulation does, however, require more from a defendant than
"speculation or surmise" about whether he might have uncovered
something unknown to him having exculpatory value if he had had
an opportunity to examine the evidence before its destruction.
Williams, 455 Mass. at 717. The defendant must articulate what
exculpatory information he believes the evidence would have
revealed, and there must be a "reasonable possibility" that the
evidence could have revealed such exculpatory information prior
to its loss or destruction. Compare Commonwealth v. Woodward,
427 Mass. 659, 677-678 & n.33 (1998) (defendant established
"reasonable possibility" that exculpatory evidence would have
been found when Commonwealth lost tissue sample, "the bullseye
of the medical problem," which was important issue at trial),
and Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 15, 22-23
(1993) (defendant established that Commonwealth destroyed
"potentially exculpatory evidence" in rape case), with Williams,
455 Mass. at 720 ("defendant was unable to demonstrate a
reasonable possibility that the lost opportunity to observe the
testing [of a blood sample] was exculpatory"), and Commonwealth
v. Meas, 467 Mass. 434, 448 n.16, cert. denied, 135 S. Ct. 150
(2014) ("defense counsel offered only speculation in claiming
that the lost [video] footage would have been exculpatory" where
two of three video recordings preserved).
11
In the instant case, the defendant's affidavit contends
specifically that the booking video would have shown that he did
not assault Officer Moriarty and that Moriarty, in fact,
assaulted him. See Commonwealth v. Carey, 26 Mass. App. Ct.
339, 340 (1988) ("Appropriate use of videotapes as evidence
includes the videotape record of the booking of a defendant").
Moriarty, the Commonwealth's only trial witness concerning the
incidents at booking, testified that, "there were security
cameras there that essentially captured the entire booking
process." The credibility of Moriarty was critical, and if the
booking video had shown that the defendant had not assaulted
Moriarty, it likely would have been outcome determinative on the
assault and battery charge. See Neal, supra at 11, quoting from
Commonwealth v. Collins, 386 Mass. 1, 8 (1982) ("[E]vidence
tending to impeach the credibility of a key prosecution witness
is 'clearly exculpatory'").7 "Any conclusion on this record that
the videotape has no exculpatory potential could rest only on an
arbitrary preference for the officer['s] testimony over [the
affidavit] of the defendant." Commonwealth v. Cameron, 25 Mass.
App. Ct. 538, 547 (1988). The defendant has therefore
"establish[ed] a reasonable possibility" that the booking video
would have been exculpatory. Williams, 455 Mass. at 716,
7
Of course, the booking video also could have established
definitive evidence of the defendant's guilt as well.
12
quoting from Cintron, 438 Mass. at 784. The judge thus did not
err in assuming that the video was exculpatory.
ii. The balancing test. We next consider the judge's
application of the balancing test that "weigh[s] the culpability
of the Commonwealth, the materiality of the evidence, and the
potential prejudice to the defendant." Williams, supra, quoting
from Cintron, supra. We conclude that the judge erroneously
determined that the Commonwealth had no culpability because he
misapprehended when the Commonwealth's duty to preserve the
evidence attached. We also conclude that he erroneously
determined that there was no prejudice to the defendant, as the
combination of the Commonwealth's failure to preserve and
produce the booking video, the judge's declining to give the
jury any instruction on how to consider the evidence, and the
prosecutor's argument to the jury that they should not speculate
why there was no video did in fact prejudice the defendant. "As
a result, the judge did not properly calibrate the factors in
the balancing test and underestimated both the culpability of
the Commonwealth and the potential prejudicial effect of the
destruction of the evidence," as well as the appropriate remedy.
See Sasville, 35 Mass. App. Ct. at 23.
A. Culpability. The judge's finding that "there [was] no
culpability on the part of the Commonwealth" necessarily
presupposed that the Commonwealth's duty to preserve exculpatory
13
evidence attaches only when a motion to preserve the evidence
has first been made. Such a conclusion is legal error. As the
defendant and the Commonwealth both recognized at oral argument,
in Sasville, 35 Mass. App. Ct. at 18-19, this court confirmed
that the duty to preserve material, potentially exculpatory
evidence arises prior to such a motion.
"It has been held that the Commonwealth has the duty not to
destroy exculpatory evidence; rather, it must preserve such
evidence for the defendant to inspect, examine, or perform
tests on, if he so chooses. This obligation grows out of
the Commonwealth's duty to disclose evidence favorable to
an accused upon request . . . where the evidence is
material either to guilt or to punishment . . . . To hold
otherwise would allow the Commonwealth's duty to disclose
exculpatory evidence to be avoided by destroying vital
evidence before prosecution begins or before defendants
hear of its existence."
Ibid. (quotations and citations omitted). In Commonwealth v.
Laguer, 448 Mass. 585, 595 n.27 (2007), the Supreme Judicial
Court cautioned that "the Commonwealth's duty to disclose
exculpatory evidence is not dependent on a request by the
defense for such evidence. The Commonwealth has a duty to
disclose all exculpatory evidence, requested or not."
We therefore conclude that in the instant case, where the
police department had a video recording of an alleged crime
committed in its booking area, with which the defendant was
charged, the Commonwealth should have required no further
notification by the defendant to recognize the need to preserve
14
that video evidence.8 See Sasville, supra at 23-24 ("The worth
of such [evidence] to establish conclusively [the guilt or
innocence of the defendant] would be known to any professional
in the criminal justice system"). Contrast Commonwealth v.
Jewett, 17 Mass. App. Ct. 354, 359-360, S.C., 392 Mass. 558
(1984) (defendant must make request for specialized handling of
evidence where Commonwealth would not otherwise be aware of need
for such handling); Commonwealth v. Mitchell, 38 Mass. App. Ct.
184, 192-193 (1995) (same).
We conclude that the Commonwealth's breach of its duty to
preserve that evidence was negligent.9 See Cameron, 25 Mass.
App. Ct. at 548. "Negligence or inadvertence are less culpable
than bad faith, but they are nevertheless culpable and must be
accounted for in the balancing procedure."10 Commonwealth v.
8
The actions of the police in allowing the booking video to
be deleted are imputed to the prosecutor. See Commonwealth v.
Olszewski, 401 Mass. 749, 753 (1988), S.C., 416 Mass. 707
(1993), cert. denied, 513 U.S. 835 (1994). This is true even if
the prosecutor did not have actual knowledge of the existence of
the booking video. See Commonwealth v. St. Germain, 381 Mass.
256, 261 n.8 (1980); Commonwealth v. Gallarelli, 399 Mass. 17,
20 n.4 (1987).
9
While we independently arrive at this conclusion, the
Commonwealth correctly conceded at oral argument before this
court that there was at least negligent culpability on the
Commonwealth's part for failing to preserve the booking video.
10
The judge's findings regarding the lengthy delay in the
defendant's request for the booking video, and the judge's
crediting of Sergeant Smith's testimony at the motion hearing
that he did not receive the voice mail messages prior to the
15
Noonan, 48 Mass. App. Ct. 356, 360 n.5 (1999), quoting from
Commonwealth v. Olszewski, 401 Mass. 749, 757 n.7 (1988), S.C.,
416 Mass. 707 (1993), cert. denied, 513 U.S. 835 (1994). In
finding the Commonwealth not culpable, the judge erroneously
failed to consider and then weigh the Commonwealth's negligence
in the balancing test.
B. Materiality of the booking video. The trial judge did
not reach the issue of materiality, but assumed that the booking
video was material for the sake of conducting the balancing
test. We now consider the issue ourselves.
We must first determine the appropriate standard to apply
to review the materiality of the booking video. "The definition
of 'material' varies with the specificity of the defendant's
discovery request." Commonwealth v. Montanez, 410 Mass. 290,
297 n.8 (1991). Prior to trial, the defendant's motions to
preserve and produce the booking video were allowed without
opposition from the Commonwealth. These motions represented
"specific request[s which] 'provide[d] the Commonwealth with
notice of the defendant['s] interest in a particular piece of
evidence.'" Commonwealth v. Jackson, 388 Mass. 98, 110 (1983),
quoting from Commonwealth v. Wilson, 381 Mass. 90, 109 (1980).
As such, to establish the materiality of the evidence, the
thirty-day scheduled erasure of the video, support a finding of
negligence rather than bad faith.
16
"defendant need only demonstrate that a substantial basis exists
for claiming prejudice from the nondisclosure." Williams, 455
Mass. at 721 n.12, quoting from Tucceri, 412 Mass. at 412.
As was the case in Sasville, 35 Mass. App. Ct. at 25-26,
the credibility of "the key prosecution witness . . . was of
major importance." If the booking video had demonstrated that
the defendant had not assaulted Officer Moriarty,
"such evidence would have undoubtedly undermined
[Moriarty's] credibility in the eyes of the jury. It would
also have provided a theory of defense to the defendant,
[that the police had attempted to cover up an assault by
Moriarty against the defendant, as alleged in the
defendant's affidavit]. . . . Therefore, the destroyed
evidence was highly material."
Ibid.
The defendant has demonstrated that destruction of the
booking video prior to its disclosure to him created a
substantial basis for a claim of prejudice. Williams, supra.
This factor of the balancing test thus favors the defendant, and
the judge did not err in assuming that the video was material.
C. Prejudice to the defendant's case. We disagree with
the judge's conclusion that "[t]he defendant was not prejudiced
by the failure to preserve [the booking video]" because the
judge allowed the defendant to cross-examine Moriarty and to
comment on the missing video during his opening statement and
closing argument. We emphasize that the absence of the video
17
denied the defendant the most concrete evidence available to
impeach Moriarty. See Sasville, 35 Mass App. Ct. at 27 ("[I]n
the absence of any concrete evidence . . ., the success of any
impeachment would be remote, at best"). Although we have
recognized that in certain circumstances the ability "to
question and comment about the fact that [the defendant] was
videotaped but the Commonwealth does not now have that
evidence," would be a potential remedy to such prejudice, we
have not concluded that such questioning or commentary is a
cure-all. Cameron, 25 Mass. App. Ct. at 549.
Here, the ability to question the Commonwealth about the
loss of the video was not alone sufficient, particularly in
light of the judge's declining to give a missing evidence
instruction and the prosecutor's closing argument that the jury
should listen to the judge's instructions, confine itself to the
evidence, and not speculate about why there is no video. In the
absence of any instruction from the judge about how to consider
the missing evidence, the potential for juror confusion was
substantial. Indeed the judge's standard instructions appeared
to confirm the prosecutor's closing argument:
"You are not to engage in any guesswork about any
unanswered questions that remain in your mind or to
speculate about what the real facts might or might not have
been. . . . You are to decide what the facts are solely
from the evidence admitted in the case and not from
suspicion or conjecture. The evidence consists of the
18
testimony of witnesses as you recall it. . . . Now some
things that occur during a trial are not evidence and you
may not consider them as evidence in deciding the facts of
the case. . . . The opening statements and closing
arguments of the lawyers are not a substitute of the
evidence."
In light of the combined effects of the prosecutor's closing
argument and the judge's initial and final instructions to the
jury, "a comment by defense counsel in his closing argument upon
the 'Commonwealth's failure to produce the [missing evidence]'
would not have provided a fair trial." Sasville, 35 Mass. App.
Ct. at 28. The third factor of prejudice thus favors the
defendant.
c. Remedy for prejudice to defendant's case. "Absent a
clear abuse of discretion, we will not disturb the judge's
decision concerning an appropriate remedy" for lost or destroyed
evidence. Commonwealth v. Harwood, 432 Mass. 290, 302 (2000).
In the instant case, all three factors of the balancing test
favor the defendant. In light of both the Commonwealth's
culpability and the fact that the jury were effectively
foreclosed from drawing any negative inference about the
destroyed booking video, the remedies that were afforded to the
defendant were "inadequate to protect the defendant's
constitutional right to a fair trial." Sasville, 35 Mass. App.
Ct. at 23.
19
We therefore reverse the order denying the defendant's
motion for a new trial. The judgment is reversed and the
verdict is set aside. At any retrial of the defendant, the
trial judge must instruct the jury on how to address the missing
booking video. As the Supreme Judicial Court has explained,
"[w]e have not directly addressed the issue of a missing
evidence instruction. However, '[o]ur courts have fashioned or
upheld various judicial remedies for the loss of evidence'"
(footnote omitted). Commonwealth v. Kee, 449 Mass 550, 557
(2007), quoting from Harwood, supra at 302. "In certain cases
where evidence has been lost or destroyed, it may be appropriate
to instruct the jury that they may, but need not, draw an
inference against the Commonwealth." Ibid. This is such a
case. The instruction "should generally permit, rather than
require, a negative inference against the Commonwealth." Id. at
558. The jury should also be instructed that "[i]t may be
possible to draw more than one inference from the circumstances
warranting the missing evidence instruction, . . . and choosing
between competing inferences is the province of the jury." Id.
at 558-559. Both the Commonwealth and the defendant are also
free to introduce testimony and other evidence regarding the
reasons why the booking video was not preserved or produced and
20
to argue the reasonable inferences that can be drawn therefrom.
Compare Cameron, 25 Mass App. Ct at 549.11
Order denying motion for
new trial reversed.
Judgment reversed.
Verdict set aside.
11
As we conclude that the judgment must be reversed, we do
not reach the defendant's claim of ineffective assistance of
counsel, which he raises for the first time on appeal. We note,
however, that the courts of the Commonwealth "strongly disfavor
raising claims of ineffective assistance on direct appeal."
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).