Opinion
14-P-1445
04-11-2016
COMMONWEALTH v. ATXAY PHONGVICHITH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 13, 2007, a Superior Court jury convicted the defendant of one count of unarmed robbery. The crime concerned the theft of a necklace from a child in the candy aisle of a supermarket. The store's security camera captured the incident, and the recording was subsequently played for the jury at trial. The defendant challenges on appeal the admission of the recording, as well as the judge's denials of his request for a missing witness instruction and of his motion for a required finding of not guilty. We affirm.
Background. On June 22, 2006, the victim's mother took her son and daughter to the Market Basket in Lowell. According to the mother's testimony, at the beginning of their shopping trip, the son was wearing a necklace that he wore "all the time." While the mother was shopping in the meat aisle, the children ventured into the candy aisle (aisle ten). When the mother next saw them, both of the children were "scared [and] shivering" and the son no longer was wearing his necklace. When the mother alerted the assistant store manager (manager) about this incident, he went to view the security footage of aisle ten. Though neither child testified at trial, the manager testified to what he saw recorded on the security cameras that day. The recording depicts a man (later identified as the defendant) approach and corner the son (at which point all of the son and some of the defendant are obscured from the camera's view). When the son can be seen immediately thereafter, he is clutching his neck, speaking with his sister in an agitated manner, and repeatedly peering back over his shoulder at the defendant who was walking away. Before he leaves the aisle, the defendant appears to place something on a shelf. Having viewed this, the manager went and found the mother and her children, who were standing in front of the man the manager had seen on the recording, later identified as the defendant. The police arrived and arrested the defendant. After two unsuccessful searches for the son's necklace in the candy aisle, the manager and an officer "[t]ore the place apart" and discovered the necklace, which "was broken near the clasp area."
We allowed a motion by the Commonwealth, which the defendant did not oppose, to transmit the recording that was played for the jury, and we viewed it.
Discussion. 1. Authentication of the recording. The defendant contends that the Commonwealth did not properly authenticate the recording because it offered neither the testimony of one of the children (percipient witnesses to the incident), nor the testimony of the individual who compiled the recorded footage. We disagree.
Notably, the key portion of the recording -- the portion depicting the incident in aisle ten -- was not spliced or otherwise altered. Instead, it is made up of a continuous shot from a single camera. Furthermore, through Market Basket's security supervisor, the Commonwealth provided ample testimony as to the store's surveillance technology: the number of cameras, how footage from various cameras is compiled, and indicia of whether footage had been tampered with (the security supervisor verified that it was "untampered with"). See Commonwealth v. Pytou Heang, 458 Mass. 827, 855-856 & n.33 (2011) (security footage properly authenticated by detective's description of process by which videotape was copied from store's surveillance system). The manager also testified that the recording shown to the jury was a "fair and accurate representation of the camera surveillance that [he had] viewed" on the day of the crime. See Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977) ("[A]uthenticity usually takes the form of testimony . . . that the thing is what its proponent represents it to be"), quoting from Leach & Liacos, Massachusetts Evidence 265 (4th ed. 1967). See also Mass. G. Evid. § 901(a) (2015).
In the recording shown to the jury, some clips before and after the incident in aisle ten were taken from different cameras to reflect the defendant's movements throughout the store. There was no editing of the incident itself.
The defendant also argues that the recording should not have been admitted because it did not depict certain events. However, arguments about completeness affect weight, rather than admissibility. See Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 295-296 (2006).
We note that trial counsel ably used the incompleteness of the recording to stress that the Commonwealth's evidence was unreliable. She vigorously cross-examined the Commonwealth's witnesses about scenes the recording did not depict, and she reinforced such deficiencies in her closing argument ("[W]ouldn't you want to see the whole tape? Instead, what you have . . . is an edited version culled together by somebody who substituted their judgment for your own").
2. Missing witness instruction. The defendant argues that he was entitled to a missing witness instruction regarding two potential witnesses: the security officer who compiled the surveillance footage, and one of the children. For both witnesses, the defendant has not laid a sufficient foundation for an instruction that should be given "only in clear cases, and with caution." Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986). For the security officer, the Commonwealth offered a plausible reason for his absence: he was on vacation. See ibid. (missing witness instruction only appropriate where party fails to call such witness "without explanation"). As for the child witnesses, we note that the defendant himself could have sought to call them as witnesses if he thought they would have provided exculpatory evidence. Rather than doing so, he questioned their competency to testify. Assuming, arguendo, the competency of the children, the Commonwealth had little reason to call them where it could prove its case through the recording that captured the crime in progress. Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 552 (2006) (missing witness instruction not appropriate for testimony that would be "collateral or cumulative"). This simply is not a case where the interests served by a missing witness instruction are implicated.
The son was six years old at the time of trial, and the daughter was nine years old. Before the Commonwealth had decided not to call the children as witnesses, the defendant filed a motion in limine "to determine [their] competency to testify" through a voir dire in which the defendant could cross-examine each child. The defendant did not press this motion when the judge acknowledged it the day of trial, presumably because the prosecutor noted that she did not "anticipate that we're going to have the child testify."
The judge also permitted the defendant to argue that the witnesses' absence made the evidence in this case inadequate to convict -- a line of argument that the Supreme Judicial Court has deemed "distinctly different from a missing witness argument," which "points an accusatory finger at the Commonwealth . . . and urges the jury to conclude affirmatively that the missing evidence would have been unfavorable to the Commonwealth." Commonwealth v. Saletino, 449 Mass. 657, 672 (2007). See generally Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 203 (2016) (discussing "interrelated" nature of missing witness instruction and missing witness argument).
3. Motion for required finding. The defendant does not challenge the insufficiency of any particular element of the crime charged. He argues instead that the Commonwealth's evidence -- particularly the relationship between the recording evidence and the defendant's resulting identification -- rests on impermissible inferences. The only moment of the crime that the recording did not capture was the defendant's hand actually plucking the necklace from the son's throat. However, viewing the evidence in the light most favorable to the Commonwealth, this inference is reasonable: the son had worn the necklace that day, he was not wearing it immediately after the encounter shown on the recording, he grabbed his neck after the encounter while repeatedly looking back at the defendant, and he and his sister looked alarmed when they faced the defendant. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The Commonwealth offered compelling circumstantial evidence that the son was robbed that day, and that the defendant was the person who robbed him. See Commonwealth v. Pratt, 440 Mass. 396, 401 (2003) ("A conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt").
Judgment affirmed.
By the Court (Milkey, Agnes, & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 11, 2016.