Commonwealth v. Jerome Reed.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-475

COMMONWEALTH

vs.

JEROME REED.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Boston Municipal

Court, the defendant was convicted of the lesser included

offense of assault and battery and acquitted of the charged

offense of indecent assault and battery. On appeal, the

defendant argues that video recordings (videos) from

Massachusetts Bay Transportation Authority (MBTA) and city of

Boston security cameras should not have been admitted in

evidence because the videos were improperly authenticated. We

affirm.

1. MBTA videos. An officer with the MBTA transit police,

Jonathan Tetrault, testified that on August 9, 2021, he was

assigned to investigate a possible indecent assault and battery

inside Forest Hills MBTA station (station). As part of that

investigation, Tetrault took the victim's statement and reviewed
MBTA surveillance videos. Tetrault found videos depicting the

victim walking down stairs to the platform with a man following

her, looking around, and lifting her dress. The victim

immediately turns around and hits or pushes the man. The man

walks up the stairs and the victim follows. Tetrault also

located videos of a man whom he later identified as the

defendant entering the station before the incident and running

from the station afterward. The defendant is wearing black

footwear with a white sole, which stands out on the color

videos, as well as jeans with distinctive rips on the front

thigh and knee. In all, twelve MBTA videos were introduced

during Tetrault's testimony.1

Tetrault additionally made photographs (photos) of the

perpetrator's face using still images from the videos, which

Tetrault showed to a fellow transit police officer who

recognized the defendant. On August 17, 2021, Tetrault stopped

the defendant when he saw him at a Boston police station and

spoke with him about the August 8 incident. During that

conversation, the defendant identified himself in the photos.

Both the MBTA videos and the photos were admitted in evidence

without objection.

1 We have reviewed the MBTA and city videos introduced at
trial and provided as part of the appellate record.

2
In general, evidence is admissible where it is relevant,

that is, where it tends to make a fact more or less probable

than it would be without it. Poirier v. Plymouth, 374 Mass.

206, 210 (1978). "Authentication represents a special aspect of

relevancy in that evidence cannot have a tendency to make the

existence of a disputed fact more or less likely if the evidence

is not that which its proponent claims." Commonwealth v. Meola,

95 Mass. App. Ct. 303, 307 (2019), quoting United States v.

Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). Acting as

gatekeeper, the trial judge "is to determine whether there is

evidence sufficient, if believed, to convince the [fact finder]

by a preponderance of the evidence that the item in question is

what the proponent claims it to be." Commonwealth v. Purdy, 459

Mass. 442, 447 (2011), quoting M.S. Brodin & M. Avery,

Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). The

admissibility of 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).

The defendant argues that the MBTA videos were not properly

authenticated because Tetrault's testimony failed to describe

how the MBTA surveillance system operates and how he made copies

3
of the videos. Videos, like photographs, are usually

"authenticated directly through competent testimony that the

scene they show is a fair and accurate representation of

something the witness actually saw[;] . . . authenticity also

can be established circumstantially by evidence sufficient to

support a finding that the matter in question is what its

proponent claims" (quotation and citation omitted). Figueroa,

56 Mass. App. Ct. at 646. See Mass. G. Evid. § 901(a) (2024).

Circumstantial evidence can include the "[a]ppearance, contents,

substance, internal patterns, or other distinctive

characteristics" of the proffered evidence. Commonwealth v.

Siny Van Tran, 460 Mass. 535, 546 (2011), quoting Mass. G. Evid.

§ 901(b)(1), (4) (2011) (copy of airline ticket properly

authenticated by witness who was not employed by airline at time

ticket issued but who was able to testify to familiar markers of

authenticity of such records).

Tetrault's testimony was sufficient to authenticate the

MBTA videos. He was able to describe the process by which he

accessed the videos and identified the relevant video clips,

including how cameras are numbered and mapped in order to

identify their location. He further testified that he

recognized the locations depicted in the clips and that the

videos are fair copies of the videos he viewed as part of his

investigation. The videos themselves have date and time stamps

4
as well as an identifying code, and he testified that there was

no reason to believe that the time stamps in the videos are

inaccurate. The time stamps accord with the sequence of events

alleged.

It is also significant that the defendant identified

himself in the photos Tetrault created from the videos

introduced at trial. It is reasonable to infer from the

defendant's self-identification that the videos are accurate

depictions of what they purport to show. See Commonwealth v.

Pytou Heang, 458 Mass. 827, 855-856 (2011) (eyewitness

identification of individuals in security footage sufficient to

authenticate video). Furthermore, the defendant is dressed the

same in all the videos, providing a sufficient basis to infer

that the same person appears in all the video clips, including

those of the incident.

On this record, we conclude that the trial judge did not

err in admitting the MBTA videos. See Commonwealth v. Santos,

95 Mass. App. Ct. 791, 795 (2019) (where "there is no error,

then there is no risk of a miscarriage of justice and appellate

relief is denied").

2. City videos. Two videos from city of Boston cameras

near the station were also admitted without objection. Tetrault

did not testify to the circumstances under which he acquired

this footage. In the complete absence of any testimony

5
regarding the origin of that footage or its reliability, it was

error to admit those videos. See Commonwealth v. Connolly, 91

Mass. App. Ct. 580, 588 (2017) (video inadmissible for lack of

authentication where no witness testified to date and time of

video, placement of cameras, manner of operation, manner of

storage, and one month had passed between offense and viewing of

footage by investigating officer).

Nonetheless, the admission of videos from the city cameras

did not create a substantial risk of miscarriage of justice.

See Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023),

quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C.,

444 Mass. 72 (2005) (where defendant did not object during

trial, review for substantial risk of miscarriage of justice,

considering "[(1)] the strength of the Commonwealth's case,

[(2)] the nature of the error, [(3)] the significance of the

error in the context of the trial, and [(4)] the possibility

that the absence of an objection was the result of a reasonable

tactical decision"). The defendant argues that the footage of

the defendant fleeing the station established consciousness of

guilt, which was central to the trial judge coming to a guilty

verdict. The defendant bases this argument on statements made

by the judge in announcing the verdict. This argument is

unavailing.

6
The city videos were cumulative of the MBTA videos. The

MBTA videos depict the defendant and the victim exiting a bus

and entering the station. The defendant follows the victim

closely into the station, through the fare gates, and down a

flight of stairs. As the defendant and the victim descend the

stairs, he looks around and then lifts the victim's skirt. The

victim immediately reacts to the defendant, pushing him away.

The defendant then turns around and walks back up the stairs.

Further, videos from at least three MBTA cameras shows the

defendant running around and eventually away from the station.

The city videos only depict a distant view of a man dressed in

the same clothing as the defendant running around the perimeter

of the station. We discern no risk of a miscarriage of justice.

See Azar, 435 Mass. at 687, quoting Commonwealth v. LeFave, 430

Mass. 169, 174 (1999) ("The substantial risk standard requires

us to determine 'if we have a serious doubt whether the result

of the trial might have been different had the error not been

made'"). Nothing in the judge's statement that the defendant

"subsequently fled" suggested that he relied more on the city

videos than the MBTA videos. In any event, such reliance is

immaterial where sufficient alternative evidence existed to

support a guilty verdict. See Commonwealth v. Phim, 462 Mass.

470, 478-480 (2012) (no substantial risk of miscarriage of

7
justice where evidence admitted in error did not bear on key

issue).

Judgment affirmed.

By the Court (Henry,
D'Angelo & Hodgens, JJ.2),

Clerk

Entered: September 11, 2024.

2 The panelists are listed in order of seniority.

8