Finally, Rock testified that she heard what could have been gunshots, and then saw a Black man with thin braids and a red shirt with his hands in his pocket run down Bodwell Street toward Columbia Road and turn right onto Columbia Road.
The fact that Rock failed to identify the defendant in a photographic array is fodder for cross-examination, but given that Rock admitted that she did not get a good look at the runner's face because she was focused on his hands, it does not, in the light most favorable to the Commonwealth -- and when combined with the other evidence showing the defendant's speed and location -- preclude the inference that the defendant was the man she saw running.
We conclude that while the evidence at trial was not by any means overwhelming, it was sufficient to sustain the defendant's convictions. See Jones, Mass. Evidence of the GPS speed and location data, the video, and Rock's observations permit the reasonable inference that the defendant was the shooter. Other issues. We turn now to other issues raised on appeal that may recur upon retrial.
Maps depicting GPS evidence. The defendant argues that admitting maps depicting his location information violated his confrontation rights under the Sixth Amendment to the United States Constitution and art. Additionally, the defendant argues admission of the maps violated the rule against hearsay. Because this issue was not raised at trial, we review for a substantial risk of a miscarriage of justice. AdonSoto, Mass. We conclude it does not create such a risk.
At trial, the Commonwealth introduced maps showing the defendant's latitude and longitude points reported from the ET1 from A.
Buck testified that the maps were created by BI collecting the latitudes and longitudes of GPS points over time and sending them to a third-party mapping company. The mapping company would then produce a map encompassing all the points.
Although the record is not entirely clear how the points are plotted on the map, it appears they are generated by a computer. Thissell, 74 Mass. Whitlock, 74 Mass. Whether a computer record contains a statement depends on whether the record is "computer-generated," "computer-stored," or a hybrid of both. Thissell II, supra at n. Computer-generated records are created solely by the mechanical operation of a computer and do not require human participation.
Royal, 89 Mass. For this reason, they cannot be hearsay. With the exception of the defendant's name, all of the information included in the maps was computer-generated. The latitude, longitude, and speed points in the text boxes were generated by the GPS technology. The maps themselves were rendered by a computer at the third-party mapping company. And the dots on the map were rendered by BI's computer system. Thus, because the maps -- with the exception of the defendant's name -- were computer generated, they do not contain a statement and are not hearsay.
Further, because the maps were not hearsay, they did not violate the confrontation clause. See Pytou Heang, Mass. Hurley, Mass.
Authentication of the surveillance video. The Commonwealth introduced a cell phone video of surveillance video that allegedly depicted the shooting. The defendant objected at trial, arguing that the underlying surveillance video had not been authenticated. He renews this argument on appeal. Connolly, 91 Mass. We hold that the judge did not abuse his discretion in admitting the surveillance video. See also Commonwealth v.
Purdy, Mass. Authenticating a surveillance video is "typically. These are not, however, the exclusive ways a video can be authenticated. In addition, "[e]vidence may be authenticated by circumstantial evidence alone, including its '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics. Siny Van Tran, Mass. See Purdy, Mass.
Nardi, Mass. LaCorte, Mass. The defendant relies on Connolly, 91 Mass. This is true. A proponent is not exempt from our rules of authentication if he or she introduces a video of a video, instead of introducing the underlying video itself. Here, however, the underlying video was authenticated through plentiful circumstantial evidence indicating a jury could find that it was what it purported to be. 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.
Across the street from where the car was crashed, Carty found seven shell casings and several bullet fragments. In addition, Carty said multiple still photographs were fair and accurate representations of the scene of the shooting and the crash. Among these photographs were multiple of a blue sedan -- the same color and body style as that of the car in the cell phone video of the surveillance video -- that had crashed into a light pole bearing signs designating Quincy Street and Baker Avenue.
At least one of the 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, the same sign is visible in front of the car. In addition, Carty viewed the surveillance video in the immediate aftermath of the shooting after he personally approached the resident to whom the surveillance system belonged.
That mitigates concerns that the video could have been manipulated. Compare Connolly, 91 Mass. Finally, Rock's testimony that she heard a sound like a car backfiring or gunshots, and then saw a Black man with braids, wearing a red shirt, and with his hands in his pockets, provides further circumstantial evidence to authenticate the video. Thus, the circumstantial evidence was sufficient to enable a reasonable jury to find that the video was what it purported to be.
The judge did not abuse his discretion in admitting it. Commonwealth's argument that jurors could identify the defendant from a video. Finally, the defendant argues that it was improper for the Commonwealth to urge the jury to identify him as the shooter based on grainy video of someone who only matched his generic description.
This issue is unpreserved, and thus we review for a substantial risk of a miscarriage of justice. See AdonSoto, Mass. In the Commonwealth's opening, the prosecutor twice urged the jury to identify the defendant based on the video. The prosecutor stated, "You are going to be able to see who the person is on that video and you are going to be able to compare it to the person sitting in [the defendant's] chair.
I submit to you. He only stated that the video, in conjunction with the other evidence, showed that the defendant had committed the crimes.
The defendant and amici liken the prosecutor's comments to a single-suspect showup identification without any of the procedural protections required for such an identification. German, Mass.
Forte, Mass. Further, the defendant and amici argue that the general characteristics of being a Black man with long braids or dreadlocks are not enough to support reasonable suspicion, let alone the inference that one could identify the defendant based on the video. Warren, Mass. Cheek, Mass. Moreover, amici argue that the characterization of a Black man with braids is a prime trigger for implicit bias, due to stereotypical associations about criminality based on this description.
Sylvia, Mass. Fazio, Mass. Barbosa, Mass. We agree with the defendant that the Commonwealth's suggestions that the jury could identify the defendant based on the video were unreasonable.
The video is not high enough resolution and is taken from too far away to be able to discern any features of the shooter's face. Vasquez, Mass. All one can see is that the shooter is a Black man with long hair in braids or dreadlocks that extend down to his midback. Given the shooter's common hairstyle and the inability to see any of his facial features, it was unreasonable for the Commonwealth to ask the jury to identify the defendant as the shooter in the video.
See Sylvia, Mass. Because we reverse the defendant's convictions on other grounds, we need not determine whether these improper statements gave rise to a substantial risk of a miscarriage of justice.
The judgments against the defendant are reversed, the verdicts are set aside, and the case is remanded to the Superior Court for a new trial and further proceedings consistent with this opinion.
The shooter's hair and dress are less clear from the video. Thus, when describing the shooter in the video, we describe his hair as "braids or dreadlocks" and his clothing as a "red or pink shirt or sweatshirt. The photograph of him taken the day after the shooting that was admitted in evidence appears to confirm this.
On count three, the defendant had been indicted as an armed career criminal, G. After trial, he pleaded guilty to being an armed career criminal on that count.
Count four was then dismissed at the request of the Commonwealth. In essence, the speed data is not based merely on doing algebra to calculate the average speed between two location points. Instead, the device uses a different frequency to take a reading every millisecond of a satellite's position in the sky, and then, based on that, uses the Doppler effect to determine the GPS device's velocity and direction.
Although it is not entirely clear from the record, it appears the "best sample" is the one during which the device was communicating with the highest number of satellites.
Torres, Mass. Whynaught, Mass. Podgurski, 81 Mass. Usually the line between a preliminary question of fact upon which admissibility depends, such as gatekeeper reliability, see Mass G.
See P. Yet when the proposed evidence is the product of a technical device, such as it is in this case, the line between these evidentiary principles can blur. The reliability of evidence based on radar depends on 1 the validity of the underlying theory e. In that scenario, the first two elements would be subject to gatekeeper reliability under Daubert-Lanigan or Frye.
The third element, in contrast, would in most instances be a matter of conditional relevance. By inquiring into the third element, the judge would ask not whether the device was reliable, but rather whether a reasonable jury could find by a preponderance of the evidence that it was functioning properly at the time it was used. In essence, the relevance of a measuring device is conditioned on whether a jury could find that it was functioning properly.
Moreover, he had not "figured out and formulated a way to successfully [test speed] reliably and repeatedly. BI's informal testing consisted of having ten employees at any given time wear its devices and report back if there were any "speed irregularities.
This could lead the jury to overvalue its accuracy. For the location data, in contrast, Buck did not say that the ET1 could pinpoint one's exact location; he said that it was accurate within a certain number of feet. We leave for another day how much a defendant needs to show to assert a. Further, we note that while in many scenarios it may be sufficient for the Commonwealth to show that a device applies the same methodology as prior versions, courts are not required to admit evidence from a device merely because such evidence has previously been admitted.
Shanley, Mass. We similarly leave for another day how much a defendant needs to show to call into question the reliability of a generally accepted device. Neal, Mass. If the defendant objects -- as he did here -- to the reliability of the ET1 model as a whole, then the Commonwealth bears the burden of showing that the ET1 passes gatekeeper reliability.
See People v. Perlman, supra at At the same time, we expect that the testing requirements judges impose will not be so onerous as to make use of radar devices a practical impossibility.
In the instant case, the record indicates that the judge, over the defendant's objection, required no foundation whatsoever regarding the radar unit's accuracy. In direct examination, however, Trooper Salzman testified that the radar unit in question had been the subject of repeated testing by means of its internal calibration mechanism. Yet, the testimony of Trooper Salzman fails to provide any basis for evaluating the reliability of this calibration procedure.
In addition, the record contains no expert testimony or other evidence from which the foundational sufficiency of the exclusive utilization of this testing mechanism might be found.
Despite our unwillingness on this limited record to sanction this type of radar testing, we affirm the conviction here for several reasons. First, the issue has not previously been raised in this Commonwealth, and there is every indication that the police followed testing habits that have been consistently acceptable and apparently unchallenged in the trial courts.
More important, the radar reading, as well as the testimony of the police officer who testified from his observation of the moving vehicle, showed evidence of a speed greatly in excess of the legal limit "seventy-six," and "approximately seventy-five" miles an hour, on a highway posted for fifty-five. Further, the observations of the officer were corroborative of the reading on the radar unit.
Thus, affirming the conviction here is consistent with fairness and justice. People v. State v. Bonar, 40 Ohio App. We add that, in any speeding case tried after the date of this opinion, where radar readings from untested equipment are admitted.
The issue as to what constitutes adequate testing we leave to a consideration of specific future cases as appraised in light of the general principles included in this opinion. The second issue raised by the defendant questions whether a motorist may be adjudged guilty of operating a vehicle at an unreasonable speed absent any proof of the distance of such operation.
More specifically, it is the defendant's contention that the prosecution failed to present evidence establishing, as provided in G. Urging that this was a crucial element of the crime charged, the defendant argues that her conviction was violative of the due process clause of the Fourteenth Amendment to the United States Constitution.
Vachon v. New Hampshire, U. We believe that the defendant has misconstrued the statute. The elements which the Commonwealth must prove to sustain a conviction are contained in the first sentence of the section.
There it states that "[n]o person Commonwealth v. Bosworth, Mass. Cassidy, Mass. Distance travelled may be relevant, but it certainly is not a required element of proof. The language of the section that the defendant relies on does not create a statutory element of the offense. It merely sets forth prima facie evidence of a statutory violation. The purpose of such a rule is to assist the Commonwealth in carrying its burden of persuasion on the issue of reasonable and proper speed.
Cassidy, supra. See generally W. Liacos, Massachusetts Evidence 4th ed. An oncoming or receding vehicle reflects these waves, which are then received by the radar unit. The difference in frequency between the transmitted and received signals is measured, and in application of the "Doppler shift" principle, vehicles' speeds will be found proportional to the difference in frequencies.
Barbic, Ill. Abdallah, 82 Ill. A copy of any of the items described in subsection A , if authenticated by the attestation of the officer who has charge of the item, shall be admissible on the same terms as the original. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Electronic or digital communication, by confirming circumstances that would allow a reasonable fact finder to conclude that this evidence is what its proponent claims it to be.
Neither expert testimony nor exclusive access is necessary to authenticate the source. Subsection a. This subsection is derived from Commonwealth v. LaCorte, Mass.
Commonwealth v. Liacos, Massachusetts Evidence 4th ed. See Commonwealth v. Duddie Ford Inc. This principle is applicable to photographs as well as other forms of documentary evidence. Figueroa, 56 Mass. But authenticity also can be established circumstantially by evidence sufficient to support a finding that the matter in question is what its proponent claims. Proposed Mass. Heang, Mass.
The foundational requirement of authentication is a preliminary question of fact for the trial judge. Howe v. City of Boston, Mass. Subsection b 1. See also Commonwealth v. Wheeler, 42 Mass. Subsection b 2. Ryan, Mass. Before the lay opinion evidence is admitted, the trial judge must determine that the witness has sufficient familiarity with the genuine handwriting of the person in question to express an opinion that the specimen was written by that person.
Nunes v. Perry, Mass. However, when the evidence includes both authentic samples of the persons handwriting and samples of questionable origin, and where the witness has no prior familiarity, there is no necessity for lay opinion testimony and it should not be admitted. See Noyes v. Noyes, Mass. There is, under such circumstances, no occasion for the opinion of the outsider of only ordinary intelligence.
Subsection b 3. Whether a specimen of handwriting is genuine, i. See Davis v. Meenan, Mass. In a criminal case, if this issue is disputed, the trial judge also should submit the question to the jury. Tucker, Mass. If a genuine specimen of handwriting is in evidence, the jury is capable of comparing a specimen of handwriting to it to determine whether the specimen is genuine. In the discretion of the court, the testimony of an expert witness may be admissible. Moody v.
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