COMMONWEALTH v. SMITH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of leaving the scene of personal injury and death, in violation of G. L. c. 90, § 24 (2) (a1/212) (2), intimidation of a witness, in violation of G. L. c. 268, § 13B (b), attempt to burn a motor vehicle, in violation of G. L. c. 266, § 5A, and attempt to destroy evidence, in violation of G. L. c. 268, § 13E (b). The charges stemmed from a fatal collision that occurred at an intersection in the city of Pittsfield and the defendant's subsequent attempt to deflect the investigation away from himself. On appeal, the defendant claims that (1) the admission of a videotape depicting the collision was improper, (2) trial counsel provided ineffective assistance by failing to request a more comprehensive instruction regarding the manner in which testimony provided by an immunized witness should be assessed, and (3) the judge erred by instructing the jury on consciousness of guilt. We affirm.

Background. We summarize briefly the facts the jury could have found, reserving certain details for our discussion of the issues. Just before 7 p.m. on January 19, 2017, Gerald Scott was riding a bicycle on Linden Street at or near the intersection with Robbins Street when he was struck by a motor vehicle driven by the defendant. Cynthia Adams arrived just after the collision and saw a bicycle hit the ground and a person lying in the road. She did not see the car that caused the accident. Adams called 911 and the police and emergency personnel arrived quickly. Scott was pronounced dead at the scene.

The police found the car, a Toyota Camry, which struck Scott on the following day. The car had been abandoned on a dead-end road. The police observed “contact damage” on the car's hood and windshield. A paper towel and a partially smoked cigarette were stuffed into the opening of the gas tank. Deoxyribonucleic acid (DNA) samples were obtained from blood found on the passenger door frame and the top of the trunk. A chemical analysis revealed that the victim's DNA profile matched the primary DNA profile found in both samples. In addition, DNA samples taken from the steering wheel and the cigarette butt retrieved from the gas tank were tested. The defendant's DNA profile matched the primary DNA profile found on both items.

The owner of the Camry, a friend of the defendant, testified that he permitted the defendant to use the car and that earlier on the day of the collision the car did not have any damage to its windshield or passenger window.

During the course of the investigation, the police interviewed the defendant, who admitted that he had driven the Camry to and from work on the day of the accident. At the time of the collision, however, he claimed that he was in New York with his then girlfriend, Donna Gerwitz, and that he spent most of the night with her. The defendant asked Gerwitz to corroborate his statement. Initially, Gerwitz did so, but eventually she told the police that the defendant had not been with her at the time of the collision. Gerwitz testified at trial under a grant of immunity and said that the defendant had asked her to “[t]ell [the police] I was with him” and that her statement to the police to that effect was not true.

Also during the investigation the police learned that a private home located nearby on Rollins Street had a surveillance camera that pointed in the direction of the intersection where the collision had occurred. The police obtained a videotape (video) containing the footage recorded at the time of the collision. The video depicted a collision between a vehicle and a bicyclist and was shown to the jury over the defendant's objection.

Discussion. 1. Admission of the video. The defendant contends that the judge erred by admitting in evidence a copy of the surveillance video from the residence on Rollins Street. He argues that the video should not have been admitted because it was not properly authenticated by an eyewitness, or in the alternative by a person who had knowledge about the manner in which the surveillance footage was produced and maintained.

The admissibility of video evidence “is left to the discretion of the trial judge, and we will overturn the judge's decision only where a defendant is able to bear the heavy burden of demonstrating an abuse of that discretion.” Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002), quoting Commonwealth v. Obershaw, 435 Mass. 794, 803 (2002). We discern no abuse of discretion here.

The admissibility of the video was the subject of an oral motion in limine brought by the defendant during the course of the trial. The Commonwealth did not call the person who maintained the surveillance system to testify, and instead sought to introduce the video through Sergeant Marc Maddalena. The judge conducted a voir dire of Sergeant Maddalena, and then viewed the video himself. The judge found that, although Sergeant Maddalena was not able to explain how the police obtained the video, nor was he familiar with the system that produced the video, there was significant circumstantial evidence that demonstrated the video was what the Commonwealth purported it to be, namely a recording of the intersection at the time of the incident. See Figueroa, 56 Mass. App. Ct. at 646. In reaching his conclusion, the judge stated:

“No doubt, the video as I have observed it ․ demonstrates the intersection of Robbins and Linden at 6:52 p.m. I observed an individual on the left corner driving a -- riding a [bicycle] and then struck by a car. And then one can see ․ the bicycle and what appears to be an individual being dragged, and then the bicycle being thrown. Okay? And all this occurred at 6:52 p.m., which indeed is the time that has been fixed for this incident from [a] surveillance camera which was pointed toward that intersection.

“Hence, there is compelling circumstantial evidence.”

While videos, like photographs, are usually “authenticated directly though competent testimony that the scene shown is a fair and accurate representation of something the witness actually saw[,] ․ authenticity can also be established circumstantially by evidence sufficient to support a finding that the matter in question is what the proponent claims” (quotation and citation omitted). Figueroa, 56 Mass. App. Ct. at 646. See Mass. G. Evid. § 901(a) (2019). In ruling that the video was admissible in this case, the judge considered Sergeant Maddalena's testimony that no other accident, in particular one involving a bicycle, occurred that night at the intersection depicted in the video. In addition, Sergeant Maddalena verified the location of the surveillance camera and the video itself indicated that the recording was made on January 17, 2017, at 6:52 p.m. This was sufficient circumstantial authentication of the accuracy of the video to allow its admission. See Commonwealth v. Pytou Heang, 458 Mass. 827, 855-856 (2011).

2. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective for failing to request a more comprehensive instruction regarding how to assess the credibility of the defendant's girlfriend, who testified under a grant of immunity. In order to prevail on a claim of ineffective assistance, a defendant must show (1) that there was “serious incompetency, inefficiency, or inattention of counsel - - behavior ․ falling measurably below that which might be expected from an ordinary fallible lawyer” and (2) that “it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).² We conclude that the defendant has not met his burden on either prong.

First, the judge gave a contemporaneous cautionary instruction regarding the girlfriend's testimony and instructed the jury in his final charge that they could consider a witness's motive for testifying and interest in the outcome of the case in assessing the witness's credibility.³ These instructions were sufficient to “focus the jury's attention on the particular care they must give in evaluating testimony given [under immunity].” Commonwealth v. Ciampa, 406 Mass. 257, 266 (1989). See Commonwealth v. Webb, 468 Mass. 26, 31-32 (2014). Given these circumstances, we doubt that an ordinary fallible attorney would have asked the judge to give a more comprehensive instruction. See Saferian, 366 Mass. at 96. But, even if we were to conclude otherwise, the defendant was not deprived of a substantial ground of defense. See id. Indeed, given the strength of the Commonwealth's evidence, it is highly unlikely that a more forceful instruction would have made any difference. See Commonwealth v. Montrond, 477 Mass. 127, 137 (2017) (“[T]he strength of the Commonwealth's case, and the weight of the other evidence, cuts against the potential impact of the error” from alleged ineffective assistance).

3. The consciousness of guilt instruction. Over the defendant's objection, the judge instructed the jury on consciousness of guilt. The judge stated:

“[Y]ou have heard evidence suggesting that Mr. Smith may have intentionally attempted to influence Donna Gerwitz, a witness who he believed would testify against him. If the Commonwealth has proven Mr. Smith did such conduct, you may consider whether such action indicates feelings of guilt by Mr. Smith and whether in turn such feelings of guilt reflect actual guilt on the charges in this case.

“You are not required to draw such inferences, and you may not do so unless they appear to be reasonable in light of all the circumstances of this case. If you decide that such inferences are reasonable, it will be up to you to decide how much importance to give them.

“However, you should always remember there may be numerous reasons why an innocent person might do so. Such conduct does not necessarily reflect feelings of guilt. Please also bear in mind that a person having feelings of guilt is not necessarily guilty in fact, for feelings are sometimes found in innocent people.

“Finally, please be aware that standing alone such evidence is not enough to convict a person of a crime. You may not find Mr. Smith guilty on such evidence alone. But you may consider it in your deliberations, along with all the other evidence.”

We review a judge's decision whether to give a particular jury instruction for an abuse of discretion. See Commonwealth v. Gomes, 470 Mass. 352, 359 (2015), overruled in part on other grounds by Commonwealth v. Bastaldo, 472 Mass. 16, 18 (2015). Here, the consciousness of guilt instruction was appropriate. An “attempt[ ] to secure a false alibi” may be interpreted to “exhibit[ ] consciousness of guilt.” Commonwealth v. Rosario, 430 Mass. 505, 514 (1999). See Commonwealth v. Vick, 454 Mass. 418, 424-425 (2009) (evidence of defendant giving false alibi to police warranted consciousness of guilt instruction). Accordingly, we discern no basis for concluding that the judge abused his discretion.

Judgments affirmed.

FOOTNOTES

2.   We address the defendant's argument even though it is raised for the first time on appeal rather than through the preferred method of filing a motion for a new trial because the issue whether counsel was ineffective in the manner claimed “appears undisputedly on the trial record.” Commonwealth v. Powell, 459 Mass. 572, 583 (2011), quoting Commonwealth v. Medeiros, 456 Mass. 52, 61 (2010).

3.   After the defendant's girlfriend testified regarding the grant of immunity, the judge instructed the jury as follows:“[Y]ou have heard testimony that Ms. Gerwitz received a grant of immunity and is testifying in this trial pursuant to such immunity. In that regard, I caution you as follows:“First, the determination of any witness's truthfulness -- in this case, Ms. Gerwitz -- is solely a question for you and you alone as jury to decide; and,“Second, you may ask yourself the question of what benefits, if any, may be flowing to Ms. Gerwitz as a consequence of such immunity and, if there are any, how that immunity in any way affects Ms. Gerwitz's credibility, if at all.”In his final charge, the judge stated:“You may ․ consider the witness's motive to testify for or against either side, and of course the interest or lack of interest of the witness in the outcome of the case.”