Commonwealth v. Davis, 19-P-21

• Court: Appeals Court of Massachusetts
• Citation: 150 N.E.3d 770,97 Mass.App.Ct. 633
• Docket Number: No. 19-P-21,19-P-21
• Parties: COMMONWEALTH v. Matthew DAVIS.
• Decision Date: 11 June 2020

97 Mass.App.Ct. 633
150 N.E.3d 770

COMMONWEALTH
v.
Matthew DAVIS.

No. 19-P-21

Appeals Court of Massachusetts, Suffolk..

Argued December 11, 2019
Decided June 11, 2020

David Rangaviz, Committee for Public Counsel Services (Connor M. Barusch, Committee for Public Counsel Services, also present) for the defendant.

Andrew Doherty, Assistant District Attorney, for the Commonwealth.

Present: Hanlon, Lemire, & Hand, JJ.

HAND, J.

97 Mass.App.Ct. 634

A Superior Court jury convicted the defendant, Matthew Davis, of armed assault with intent to murder, G. L. c. 265, § 18 (b ) ; attempted assault and battery by means of discharging a firearm, G. L. c. 265, § 15F ; carrying a firearm without a license, G. L. c. 269, § 10 (a ) ; and carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ).¹ On appeal, he argues that the video recording evidence against him was not properly authenticated; global positioning system (GPS) data from a monitoring device on his ankle was not reliable;² maps in evidence that correlated to GPS data violated the confrontation clause of the Sixth Amendment to the United States Constitution and the prohibition against hearsay; and the evidence was insufficient to convict him. We affirm.

1. Background. We summarize the facts as the jury could have found them, reserving certain details for later discussion. Mid-morning on September 15, 2015, near the intersection of Quincy Street and Baker Avenue in the vicinity of the Dorchester and Roxbury sections of Boston, the defendant fired at least seven shots from a semiautomatic handgun at a moving car. Two bullets pierced the windshield, and the car crashed into a light pole. The driver, who was the car's only occupant, was unhurt. Immediately after the crash, the driver got out of the car and ran away. The defendant continued on to his home nearby.

At the time of these events, the defendant was being supervised by the Federal probation department, and was subject to GPS monitoring; he wore a GPS monitoring device attached to his ankle. The GPS monitoring system revealed that the defendant

97 Mass.App.Ct. 635

had been at the intersection of Quincy Street and Baker Avenue, the location of the shooting, at 10:27 A.M. on the day of the shooting, about a minute before the Boston Police Department received a report about the shooting.

2. Discussion. a. Video evidence. Shortly after the shooting was reported, Sergeant Thomas Carty and another detective went to the scene and canvassed

150 N.E.3d 774

the area for witnesses and surveillance video recordings. From the sidewalk, Carty saw a surveillance camera mounted on the outside of One Baker Avenue between the first and second floors. He spoke with a resident of that address, viewed a video recording taken by the surveillance camera (surveillance video recording), and learned that the camera had been pointed at the intersection of Quincy Street and Baker Avenue at the time of the shooting. Neither the resident nor Carty knew how to download the surveillance video recording to a thumb drive or digital video disc. Instead, Carty used his cell phone's video recording function to record the resident's surveillance video recording. Over the defendant's objection, Carty's copy (cell phone video recording) of the surveillance camera's recording was played for the jury.

Although the cell phone video recording is grainy, that video showed, among other things, what appears to be a dark-complexioned man in a red shirt or sweatshirt, with dark hair in multiple below-shoulder-length braids and a grey hat or cap. The video depicts the man running toward an intersection and raising his arm while holding what appears to be a handgun. As the man holds the gun with his arm extended, a blue coupe drives into the frame from the opposite direction and collides with a light pole at the corner of the intersection. The video depicts a large black and white sign with red lettering to the right of the damaged coupe, as well as several cars parked across the street from the point of the collision.

On appeal, the defendant contends that because the underlying surveillance video recording was not authenticated, the cell phone video recording should not have been admitted in evidence. He argues that authentication of a surveillance video recording requires either a percipient witness to the recorded events or the testimony of someone with a working knowledge of the surveillance system. We acknowledge that authentication of a surveillance video recording is "typically ... done through one of [these] two means" (emphasis added), Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586, 78 N.E.3d 116 (2017). However, we disagree that these

97 Mass.App.Ct. 636

are the only possible ways by which such a video may be authenticated. See Commonwealth v. Chin, 97 Mass. App. Ct. 188, 202-204, 144 N.E.3d 923 (2020). Here, the surveillance video recording was properly authenticated through other means.

" ‘The requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ Mass. G. Evid. § 901(a) (2011). See Commonwealth v. Nardi, 452 Mass. 379, 396 [893 N.E.2d 1221] (2008) ; Commonwealth v. LaCorte, 373 Mass. 700, 704 [369 N.E.2d 1006] (1977) ; M.S. Brodin & M. Avery, Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). See also Fed. R. Evid. § 901(a) (2010) (same). ‘The role of the trial judge in jury cases is to determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be. If so, the evidence should be admitted, if it is otherwise admissible.’ M.S. Brodin & M. Avery, Massachusetts Evidence, supra."

Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011). "Evidence may be authenticated by circumstantial evidence alone, including its ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.’ Mass. G. Evid. ... § 901(b)(1), (4) [2011]. Fed. R. Evid. § 901(b)(1), (4) (2010)."

150 N.E.3d 775

Commonwealth v. Siny Van Tran, 460 Mass. 535, 546, 953 N.E.2d 139 (2011).

Carty testified that he saw a car, with its driver's side door open, that had crashed into a pole at the intersection of Quincy Street and Baker Avenue. The cell phone video recording depicted a car with its driver's side door open at that location. Carty also testified that the surveillance camera was aimed at that intersection.

In addition, Carty testified that still photographs were fair and accurate representations of the scene of the shooting and crash. Among these photographs were three of a blue coupe -- the same color and body style as that of the car in the cell phone video recording -- that had crashed into a light pole bearing signs designating Quincy Street and Baker Avenue. Two of the three photographs depicted a sign in front of the crashed car; the sign advertised a church, and was black and white with red lettering. In the cell phone video recording, the same sign is visible in front of the car. The last of the three photographs depicted vehicles across Quincy Street that also appeared in the cell phone video recording.

97 Mass.App.Ct. 637

"Here, the jury could rationally have concluded" from Carty's testimony about the car and surveillance camera and from the authentication of still photographs that correlated with the cell phone video recording, "applying a preponderance of the evidence standard," that the surveillance video recording was authentic. Siny Van Tran, 460 Mass. at 546, 953 N.E.2d 139. The judge did not abuse his discretion in admitting it. Connolly, 91 Mass. App. Ct. at 585, 78 N.E.3d 116.

b. GPS evidence. At the time of the shooting, the defendant wore an "ExactuTrack 1," a GPS monitoring device (ET1 monitor) manufactured by BI, Incorporated (manufacturer). Before trial, the defendant filed a motion in limine to preclude the Commonwealth from introducing evidence through the testimony of its expert, James Buck,³ of the defendant's location and rate of travel as determined using the ET1 monitor. The defendant argued that the prosecution had not shown that, with respect to the accuracy of its positioning data or determinations of speed, "GPS technology" was sufficiently reliable to meet the Daubert– Lanigan standard governing the admissibility of scientific and technical evidence.⁴ See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994). See also Commonwealth v. Camblin, 478 Mass. 469, 469-470, 86 N.E.3d 464 (2017) ( Camblin II ).

Before ruling on the motion, the trial judge conducted a voir dire of Buck.⁵ During the voir dire, the defendant focused on the ET1 monitor, challenging (1) the reliability of the location information derived from it in "urban" or "dense urban" settings, and (2) the speed determinations made using the monitor. In his voir dire...