Commonwealth v. Dennis S. Harris.

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-570

COMMONWEALTH

vs.

DENNIS S. HARRIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the District Court, the

defendant appeals from convictions arising out of the theft of

specialized equipment from a storage warehouse.1 The defendant

argues that the judge erroneously admitted lay opinion testimony

identifying the defendant and certain Cell Site Location

Information (CSLI or CSL data). We affirm.

Background. The defendant is a former employee of Crown

Castle Warehouse in Auburn, Massachusetts. In the fall of 2021,

the warehouse experienced two burglaries, in September and

1The defendant was convicted of six separate counts: two
counts of breaking and entering in the nighttime for a felony,
G. L. c. 266, § 16; two counts of larceny from a building, G. L.
c. 266, § 20; and two counts of malicious destruction of
property, G. L. c. 266, § 127.
November respectively, both taking place around 2:00 A.M. The

items stolen from the warehouse included high-end

telecommunications equipment suitable for constructing a fiber

optic network. The burglaries, carried out by a single

individual, were both captured on the warehouse's security video

system from several cameras. The footage was introduced in

evidence as two videos comprised of various camera angles

stitched together. The videos, which we have viewed, are

entirely in black and white, depict a masked individual, hooded

in one of the burglaries, walking around the dark facility with

a flashlight2 before loading various items into a vehicle.

The parties filed cross motions in limine to determine

whether the Commonwealth would be permitted to introduce lay

witness opinion testimony identifying the defendant as the

individual in the videos. The judge conducted a voir dire of

the Commonwealth's proposed lay witnesses before allowing the

motion to admit opinion testimony from the defendant's former

supervisor, Douglas Hein.3 During trial, Hein identified the

defendant as the individual in the video with one hundred

percent certainty. Later in the trial, the Commonwealth

2 The individual appears to use a flashlight in one video
and a cell phone flashlight in the other.

3 The judge denied the motion with respect to a different
supervisor due to his insufficient familiarity with the
defendant.

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introduced testimony, over no objection from the defendant, that

CSL data from approximately thirty minutes before the September

burglary showed the defendant's cell phone moving in the

warehouse's general direction.4 The judge ultimately found the

defendant guilty on all six counts charged, and this appeal

followed.

Discussion. 1. Lay witness identification. The defendant

argues that the judge abused his discretion in admitting Hein's

testimony identifying the defendant as the individual in the

warehouse videos. The defendant's motion in limine preserved

the issue for our review. See Commonwealth v. Grady, 474 Mass.

715, 719 (2016). We review for prejudicial error accordingly.

See Commonwealth v. Wardsworth, 482 Mass. 454, 458 (2019). See

also Commonwealth v. Pina, 481 Mass. 413, 429-430 (2019).

"A lay witness is permitted to identify an individual

depicted in a video recording or photograph if that testimony

would assist the [fact finder] in making their own independent

identification." Pina, 481 Mass. at 429. See Commonwealth v.

Vacher, 469 Mass. 425, 441 (2014). In determining whether a

witness's identification of a person appearing in a photograph

or video is admissible, we consider several factors, including

4 The Commonwealth also introduced testimony indicating that
CSL data showed the defendant's cell phone moving directly to
and from the location of the warehouse at times aligning with
the beginning and end of the November burglary.

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(1) the quality of the images, (2) the level of familiarity of

the witness with the person depicted in the video, and

(3) whether the suspect was disguised in the video or has

altered his appearance since the time of the crime. See

Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325-326 (2000).

See also Wardsworth, 482 Mass. at 475; Vacher, supra at 441-442.

Whether these factors are met and the lay opinion is admissible

lies within the sound discretion of the judge. See Pleas, supra

at 328. An abuse of discretion occurs only where a judge's

decision "contains an error of law or where we conclude the

judge made a clear error of judgment in weighing the factors

relevant to the decision, . . . such that the decision falls

outside the range of reasonable alternatives" (quotation and

citation omitted). Commonwealth v. Jones, 481 Mass. 540, 558

(2019).

The defendant first argues that the disguise of the

individual in the video was so effective as to render the video

useless for purposes of identification.5 He argues, in essence,

that the disguise renders the individual's identity so obscure

5 The defendant appears to conflate this argument with the
Pleas factor regarding the image quality of the surveillance
photos. We note that the picture quality of the videos
themselves is not "so unmistakably clear or so hopelessly
obscure that the witness is no better-suited than the jury to
make the identification." Pleas, 49 Mass. App. Ct. at 325,
quoting United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995).

4
that any witness was no more "likely to correctly identify the

defendant from the [images] than the [fact finder]." Pleas, 49

Mass. App. Ct. at 326, quoting United States v. Farnsworth, 729

F.2d 1158, 1160 (8th Cir. 1984). We disagree. In fact, much

can be discerned about the depicted individual, including his

approximate height, his gait, his build, the shape of his head,

his hairstyle, the top of his face, what vehicle he drove, how

he entered and exited said vehicle, and his general familiarity

with the location. Given the details visible in the video, we

cannot say the judge abused his discretion in finding that a lay

witness would be helpful in identifying the subject of the

video.

The defendant next argues that the identification witness

had insufficient familiarity with the defendant to be allowed to

testify under the Pleas standard. Again, we disagree. Here,

the identification witness testified at the motion hearing that

he was the defendant's supervisor at the warehouse every Monday

through Friday between December 2019 and March 2020. He

testified that they worked very closely together for a period of

thirty days when the defendant was training and that they would

socialize during downtime at the warehouse. He testified to his

familiarity with the defendant's bearing and gait, his hair, and

the particular way he entered and exited his vehicle. This was

ample evidence for the judge to conclude that the witness was

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"more likely to correctly identify the defendant from the

[video] than [was he]" (citation omitted). Pleas, 49 Mass. App.

Ct. at 326.

The defendant points, in contrast, to the fact that the

identifying witness had not interacted with the defendant for a

period of roughly sixteen months prior to the burglaries. He

also downplays the extent of his interaction with the witness

while they worked together. He points to several Federal court

cases in which identifying witnesses with much more substantial

relationships to the defendant were permitted to testify. These

arguments and comparisons may have some persuasive value at the

motion stage. We cannot say, however, that a judge abuses his

discretion as a matter of law in determining that a coworker of

several months has sufficient familiarity to identify a

defendant, even after sixteen months apart, absent some

intervening factor such as a drastic change in appearance. In

other words, the judge properly exercised his discretion in

evaluating the Pleas factors and admitting the witness's

testimony.

2. Cell site location information.6 The defendant argues

that the judge erroneously admitted CSLI pertaining to the

6 The parties disagree over whether this issue was preserved
for appeal and, accordingly, whether we should review for
prejudicial error or substantial risk of miscarriage of justice.
Because we find no error, we need not reach this question. We

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September burglary because it was irrelevant.7 Because the CSLI

did not show his cell phone at the precise location of the

crime, at the precise time of the crime, he argues it has no

probative value. We disagree. "We review a judge's evidentiary

rulings for an abuse of discretion." Commonwealth v. Andre, 484

Mass. 403, 414 (2020). "Whether evidence is relevant in any

particular instance, and whether the probative value of relevant

evidence is outweighed by its prejudicial effect, are questions

within the sound discretion of the judge." Commonwealth v.

Dunn, 407 Mass. 798, 807 (1990). "Evidence is relevant if

(a) it has any tendency to make a fact more or less probable

than it would be without the evidence and (b) the fact is of

consequence in determining the action." Commonwealth v. Mason,

485 Mass. 520, 533 (2020), quoting Mass. G. Evid. § 401 (2020).

Here, the evidence showed the defendant's cell phone moving in

the general direction of the warehouse approximately thirty

minutes before the burglary. Prior to the introduction of this

note, however, that the law in Massachusetts is clear that the
standard for issues in criminal cases where no objection is
raised is to review for a substantial risk of miscarriage of
justice. See, e.g., Commonwealth v. McGann, 484 Mass. 312, 322
(2020).

7 To the extent the defendant also argues the CSL data was
substantially more prejudicial than probative, his argument
assumes the data's irrelevance. Because we do not find that the
judge abused his discretion in determining the data was
relevant, the argument fails.

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evidence, the fact finder had no knowledge of the defendant's

whereabouts. The CSLI shows he was not in a location

incompatible with having committed the crime and thus has a

tendency to make it more probable that he did commit it. The

judge properly exercised his discretion in admitting the

evidence.

Judgments affirmed.

By the Court (Sacks,
Englander & Walsh, JJ.8),

Clerk

Entered: July 28, 2025.

8 The panelists are listed in order of seniority.

8