Commonwealth v. Cesar Valentin.

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

24-P-216

COMMONWEALTH

vs.

CESAR VALENTIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of

assault and battery, G. L. c. 265, § 13A (a); assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b);

and disturbing a correctional institution, G. L. c. 268, § 30;

in connection with a jailhouse assault. On appeal, the

defendant raises two issues. He argues that the judge should

have given a missing witness instruction because the

Commonwealth did not call the victim as a witness. Second, he

argues that trial counsel was ineffective for failing to object

to the admission of a video recording that captured the assault

on the ground that it was improperly authenticated. We affirm.
Background. The defendant and the victim were detainees at

a jail. A surveillance video recording (video) of the jail's

common area, which was admitted in evidence at trial, showed the

victim talking on a pay phone. As soon as a sheriff's deputy

climbed a stairway leading away from the common area, the

defendant approached the victim from behind and punched him in

the head. The defendant proceeded to repeatedly punch the

victim in the head as he wrestled the victim to the ground.

Upon hearing the victim scream, the deputy radioed for help and

ran back down the stairs. Pursuant to protocol, the deputy

waited for backup to arrive before intervening. The defendant

continued to kick and punch the victim -- even throwing a metal

bookcase onto him -- until deputies stormed into the common area

and subdued the defendant. The deputy who climbed the stairs

witnessed the melee. At trial, he testified, "I saw the

defendant punching the detainee on the phone, continuously.

. . . he was bleeding. He was on the ground, he was being

punched, kicked."

The Commonwealth laid a foundation for the surveillance

video through the deputy. After viewing a "short clip" of the

video, the deputy identified himself in the video and testified

that he agreed with the prosecutor that the video was a "fair

and accurate representation of what was going on" in the jail's

common area on the date in question. The judge admitted the

2
video in evidence and trial counsel did not object. After

examining one other deputy who responded to the fight, the

Commonwealth rested. The defendant presented his case solely

through cross-examination; he did not call any witnesses. In a

pretrial motion in limine, the defendant argued that the judge

should instruct the jury that they could construe the absence of

an expected witness, namely the victim, against the

Commonwealth. During the charge conference, the defendant

renewed his pretrial motion for a missing witness instruction,

which the judge denied.

Discussion. 1. Missing witness instruction. The

defendant argues that the judge erred by denying the defendant's

request for a missing witness instruction. We review the

judge's decision for abuse of discretion and will not reverse

unless the decision was "manifestly unreasonable." Commonwealth

v. Saletino, 449 Mass. 657, 667 (2007).

"[W]hen a party 'has knowledge of a person who can be

located and brought forward, who is friendly to, or at least not

hostilely disposed toward, the party, and who can be expected to

give testimony of distinct importance to the case,' and the

party, without explanation, fails to call the person as a

witness," a missing witness instruction may be appropriate. Id.

at 667-668, quoting Commonwealth v. Anderson, 411 Mass. 279, 280

n.1 (1991). A missing witness instruction permits the jury to

3
"infer that the [missing witness], had he been called, would

have given testimony unfavorable to the party" that failed to

call him. Saletino, supra at 668, quoting Anderson, supra. A

judge may give the instruction only when the moving party meets

certain "foundational requisites." Saletino, supra at 669; see

Mass. G. Evid. § 1111(b) (2024). Those foundational requisites

include the importance of the missing witness's testimony, the

physical availability of the witness, whether the evidence could

be produced from other sources, and whether the witness is

equally available to either party. Commonwealth v. Williams,

450 Mass. 894, 900 (2008). In addition, courts may consider

whether the party has a plausible reason for not calling the

witness. Anderson, supra at 282-283.

Because an adverse inference can be severely damaging, the

judge retains discretion to refuse to give a missing witness

instruction even when the foundational requirements are met.

See Anderson, 411 Mass. at 283 ("the trial judge has discretion

to refuse to give the [missing witness] instruction . . . and,

conversely, a party who wishes the instruction cannot require it

of right"). See also Williams, 450 Mass. at 900-901, quoting

Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986)

("[b]ecause the inference, when it is made, can have a seriously

adverse effect on the noncalling party -- suggesting, as it

does, that the party has willfully attempted to withhold or

4
conceal significant evidence -- it should be invited only in

clear cases, and with caution").

The judge acted within his discretion in refusing to give

the instruction because the defendant failed to meet the

foundational requisites. The defendant made no showing that the

Commonwealth was in a better position to call the victim as a

witness. See Commonwealth v. Hoilett, 430 Mass. 369, 376 (1999)

(missing witness instruction not proper where witness was

equally available to both parties). The victim was equally

available to both parties -- he was believed to be incarcerated

at the time of the trial. See Commonwealth v. Johnson, 39 Mass.

App. Ct. 410, 412 (1995) (no showing that jailed witness's

presence at trial could not have been secured by either party).

Trial counsel could have subpoenaed the victim to testify but

did not do so.

Although there was no preliminary showing that the witness

would be hostile to the Commonwealth, "[l]ogic would dictate

that, because of his status, and the Commonwealth's role in

prosecuting him, [the witness] would be naturally antagonistic

toward the Commonwealth's interests." Anderson, 411 Mass. at

283. The Commonwealth had a strong case without the victim's

testimony, which would have been, at best, cumulative.

Schatvet, 23 Mass. App. Ct. at 134 (no basis for missing witness

instruction where testimony would have been cumulative). The

5
video, along with the deputy's testimony, was sufficient to

allow the jury to find the elements of all three offenses. The

Commonwealth made a reasonable tactical decision that relying on

a video of the attack, rather than a potentially hostile

witness, would be a simpler and more effective means of proving

its case. See Saletino, 449 Mass. at 668 ("[s]uch an

instruction should not be given where the Commonwealth has

legitimate tactical reasons for not calling the witness").

The Commonwealth had no burden to prove motive, and no

obligation to peremptorily rebut a self-defense claim that was

never raised. The defendant nevertheless characterizes the

Commonwealth's failure to assist in raising a self-defense claim

as an attempt to sidestep exculpatory evidence. In fact, this

gave the Commonwealth a "legitimate tactical reason" for not

calling the victim. Saletino, 449 Mass. at 668. If the

defendant had wished to assert self-defense, he could have

called the victim as a witness. Where, as here, "the

circumstances, considered by ordinary logic and experience,

suggest a plausible reason" for not calling the witness, the

missing witness instruction should not be given. Anderson, 411

Mass. at 282-283. The judge did not abuse his discretion.1

1 The defendant also argues that the judge erred in not
allowing him to make an argument in closing related to the
alleged missing witness. Given the defendant's failure to show
he was entitled to the instruction, he has also failed to show

6
2. Authentication of the video recording. The defendant

contends that trial counsel was ineffective for failing to

object to the admission of the video for lack of authentication.

We disagree with this contention because the video was properly

authenticated. The deputy testified to his firsthand

observation of the assault, which was consistent with what was

depicted on the video.

The heart of the defendant's argument is that while the

deputy's testimony was sufficient to authenticate the "short

clip" of the video that was played in court, it was insufficient

to authenticate the video in its entirety. The deputy

identified himself in a still frame in the video, watched a

"short clip" of himself climbing the stairs, and testified that

the recording was "a fair and accurate representation of what

was going on."2 The defendant emphasizes that the deputy did not

he was entitled to make such an argument. See Saletino, 449
Mass. at 670 ("once it was determined that the judge would not
give a missing witness instruction in this case, he should not
have permitted counsel to make the missing witness argument to
the jury").

2 The record is silent on exactly what the "short clip" of
the video depicts. The prosecutor asked the deputy the
following question: "So Deputy, just to play a short clip of it,
you mentioned that is you in the uniform, beginning to go up the
stairs?" About ten seconds elapsed from when the deputy began
to climb the stairs to when the defendant first punched the
victim. For reasons outlined below, whether the "short clip"
showed the fight itself is immaterial to the outcome of the
defendant's ineffective assistance of counsel claim.

7
testify that he had watched the entire video. Trial counsel did

not object to the admission of the video.

To prevail on a claim of ineffective assistance of counsel,

the defendant must show a "serious incompetency, inefficiency,

or inattention of counsel -- behavior of counsel falling

measurably below that which might be expected from an ordinary

fallible lawyer -- and, if that is found, then, typically,

whether it has likely deprived the defendant of an otherwise

available, substantial ground of defen[s]e." Commonwealth v.

Saferian, 366 Mass. 89, 96-97 (1974).

The defendant does not satisfy the first prong of the

Saferian test because objecting to the admission of the video

would have been futile. See Commonwealth v. Collins, 470 Mass.

255, 261 (2014) (counsel not ineffective for failing to make

futile objection). To authenticate an item of evidence, the

proponent must produce evidence to support a finding that the

item is what its proponent represents it to be. Commonwealth v.

LaCorte, 373 Mass. 700, 704 (1977). A video may be

authenticated with eyewitness testimony that the video is a fair

and accurate representation of what the witness perceived. See

Commonwealth v. Pytou Heang, 458 Mass. 827, 855 (2011)

(testimony by witness that she and three other individuals could

be seen on surveillance video and that video was fair and

accurate depiction of scene was sufficient to authenticate

8
video); Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586

(2017) (authentication of video typically achieved by "having an

eyewitness testify that the video is a fair and accurate

representation of what he saw on the day in question"). A video

may also be authenticated by circumstantial evidence, including

its "[a]ppearance, contents, substance, internal patterns, or

other distinctive characteristics." Commonwealth v. Davis, 487

Mass. 448, 466 (2021), quoting Commonwealth v. Siny Van Tran,

460 Mass. 535, 546 (2011).

The deputy identified himself in the video and agreed with

the prosecutor that the video was "a fair and accurate

representation of what was going on" at the jail on the night in

question. This testimony supported a finding that the video was

authentic. Pytou Heang, 458 Mass. at 855-856. The defendant

cites no case law that requires the witness to watch the entire

video in court, or prior to testifying, to authenticate it, nor

does case law require a witness to continually authenticate a

video "frame by frame" as it is played.

Assuming arguendo that this testimony was insufficient to

authenticate the video, the remainder of the deputy's testimony

authenticated the video by circumstantial evidence. The deputy

testified, "I saw the defendant punching the [victim] on the

phone, continuously. . . . he was bleeding. He was on the

ground, he was being punched, kicked. And then there was a

9
bookcase, like a metal bookcase that was right near there, and

that was picked up by [the defendant] and thrown on [the

victim]." This testimony matches what is shown on the video.

See Davis, 487 Mass. at 466 ("plentiful circumstantial evidence"

authenticated video where witness testimony matched substance of

what was shown on video). The defendant's ineffective

assistance of counsel claim falls short.

Judgments affirmed.

By the Court (Vuono, Singh &
Hershfang, JJ.3),

Clerk

Entered: March 4, 2025.

3 The panelists are listed in order of seniority.

10