970 N.E.2d 813 82 Mass.App.Ct. 1106, 970 N.E.2d 813, 2012 WL 2601933 (Mass.App.Ct.

) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 82 Mass.App.Ct. 1106, 2012 WL 2601933 (Mass.App.Ct.))

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Briefs and Other Related Documents Judges and Attorneys NOTICE: THIS IS AN UNPUBLISHED OPINION. Appeals Court of Massachusetts. COMMONWEALTH v. George D. McBRIDE.FN1 FN1. Also known as George D. McBrier. No. 10P1358. July 6, 2012. By the Court (RAPOZA, C.J., COHEN & AGNES, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 *1 A District Court jury convicted the defendant of possession of a class C substance in violation of G.L. c. 94C, 34, and committing assault and battery on a public employee in violation of G.L. c. 265, 13D. The defendant subsequently brought a new trial motion, which was denied by the trial judge after hearing. The defendant's direct appeal of his convictions has been consolidated with his appeal from the denial of his new trial motion. Discussion. The defendant raises five claims on appeal: (1) the motion judge erred in denying a pretrial motion to suppress evidence; (2) the trial judge's erroneous admission in evidence of a drug certificate was not harmless beyond a reasonable doubt; (3) he received ineffective as-

sistance of counsel at trial; (4) the Commonwealth violated due process by failing to preserve exculpatory evidence; and (5) the use of certain testimony at trial constituted prosecutorial misconduct warranting dismissal of the charges against him. We start by addressing the defendant's claim concerning the drug certificate, as our determination on that matter also resolves his claims concerning the motion to suppress and ineffective assistance of counsel. Drug certificate. In denying the defendant's new trial motion, the judge ruled that while the admission of the drug certificate was contrary to MelendezDiaz v. Massachusetts, 557 U.S. 305 (2009), the error was harmless beyond a reasonable doubt. We disagree. The drug certificate was the only evidence to show that the defendant in fact possessed a class C substance, and the Commonwealth in its brief concedes that the certificate's admission was not harmless. Consequently, in the absence of other proof, the defendant's conviction for possession of a class C substance cannot stand. See Commonwealth v. Parenteau, 460 Mass. 1, 1011 (2011). This fact renders moot the suppression and ineffective assistance claims raised by the defendant, both of which pertain to the drug possession charge. We thus confine our further review to the remaining issues, being the Commonwealth's failure to preserve evidence and prosecutorial misconduct. Failure to preserve evidence. At issue is a surveillance video recorded in the Framingham police department holding cell area during the night of the defendant's arrest, July 10, 2007. The defendant argues that this video recording contained exculpatory evidence and the Commonwealth's failure to preserve it violated his due pro-

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970 N.E.2d 813 82 Mass.App.Ct. 1106, 970 N.E.2d 813, 2012 WL 2601933 (Mass.App.Ct.) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 82 Mass.App.Ct. 1106, 2012 WL 2601933 (Mass.App.Ct.))

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cess rights, requiring dismissal of the charges against him.FN2 FN2. According to an affidavit from Sergeant Christopher Montuori that was admitted in evidence at the hearing on the defendant's new trial motion, Framingham police recorded activity in the holding cell area on VHS tape, although these tapes were routinely recorded over after thirty days. The defendant's first request for a copy of the surveillance video of the holding cell area from the night of his arrest did not come until February, 2008, approximately seven months after his arrest, by which time the tape would have been recorded over. The defendant was convicted of pushing Sergeant Scott Brown in the course of a struggle leading up to a body cavity search during the booking process. Based on the trial testimony of four police officers, the jury reasonably could have concluded the following. Detective Leonard Pini, while performing a pat-down of the defendant at the booking counter, came to suspect that the defendant had something hidden in his buttocks area because he was clenching his buttocks and was unable to spread his legs apart fully. Pini then asked the defendant to accompany him to a holding cell so he could conduct a further search. *2 The defendant accompanied officers into a juvenile holding cell, which was the closest cell to the booking desk. Brown and Pini asked him to remove his pants and underwear or hand over the item or items the officers believed he was hiding. The defendant initially refused, saying he was being sexually harassed. He then removed only his pants but not his underwear. Following a brief verbal exchange, a struggle

ensued. At a point, the officers forcibly removed the defendant's underpants, and ultimately recovered from his buttocks a broken, glass crack pipe along with a small plastic bag containing a white powder substance. The defendant was not charged with possession of those items, however. The defendant claimed at trial that he was beat up by police without provocation and that the assault and battery charge against him grew from that altercation. He testified in his own defense and provided a different version of the events leading up to the cavity search. His attorney highlighted the police policy of taping the holding cell area and emphasized the lack of a video from the night in question, suggesting that there had been what amounted to a police coverup. She also noted that Brown wrote the only report on the incident, even though at least three officers were involved. In his new trial motion and in this appeal, the defendant argues that any video would have been exculpatory because it would have conclusively proven what happened on the night of his arrest, corroborating his story. In considering whether the failure to preserve the video recording warrants dismissal of the charges against the defendant, we must ask two questions: whether the defendant has reasonably shown that the recording could have been exculpatory and, if so, the appropriateness and extent of any remedial action taken. See Commonwealth v. Williams, 455 Mass. 706, 718719 & n. 9 (2010), citing Commonwealth v. Neal, 392 Mass. 1, 12 (1984). To meet that initial burden, the defendant must establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [destroyed material] would have produced

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970 N.E.2d 813 82 Mass.App.Ct. 1106, 970 N.E.2d 813, 2012 WL 2601933 (Mass.App.Ct.) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 82 Mass.App.Ct. 1106, 2012 WL 2601933 (Mass.App.Ct.))

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evidence favorable to his cause. See Commonwealth v. Sasville, 35 Mass.App.Ct. 15, 20 (1993), quoting from Commonwealth v. Neal, supra. Only if a defendant meets that initial burden does a court proceed to determine a proper remedy, balancing the Commonwealth's culpability, the materiality of the evidence, and the prejudice to the defendant. Commonwealth v. Williams, supra at 718. Even were we to assume the unavailable video recording was potentially exculpatory, we would conclude that the proper remedy was not to dismiss the complaint, but rather to allow the defendant to question about and comment upon the Commonwealth's failure to produce the videotape. Commonwealth v. Cameron, 25 Mass.App.Ct. 538, 549 (1988) (lost booking video of drunk driving defendant warranted new trial at which she could question Commonwealth witnesses regarding missing evidence and comment on its absence). That occurred in this case. Here, the defendant's attorney cross-examined Pini about the fact that a video recording had been made on the night in question and was no longer available, which provided support for the defendant's suggestion of a police coverup. This constituted sufficient remedial action. Commonwealth v. Sasville, supra at 2728 (dismissal of complaint based on lost or destroyed potentially exculpatory evidence appropriate absent another effective remedy). *3 Prosecutorial misconduct. At trial, the defendant objected to police testimony about the crack pipe and a small bag of white powder found during the body cavity search. On appeal, he claims that the testimony was irrelevant because he was not charged with possession of those items. He further contends that the use of that testi-

mony constituted prosecutorial misconduct, claiming that an assistant district attorney who handled the pretrial motion to suppress (although not the trial itself) had stated that the Commonwealth would not use the challenged testimony at trial. Based on the record, we conclude that the testimony in issue was relevant to provide context for the actions of the police officers, especially considering the defendant's assertion that he was the victim of an unprovoked beating. The officers' testimony regarding the initial justification for the defendant's body cavity search, i.e. the behavior that caused them to suspect he had drugs hidden in his buttocks, was made relevant by the defendant's claim of unprovoked police abuse. Cf. Commonwealth v. Aviles, 461 Mass. 60, 6970 (2011). Further, the fact that the search actually led to the recovery of contraband went to the defendant's potential motive for both resisting the search and pushing Brown. See Commonwealth v. Boyd, 73 Mass.App.Ct. 190, 196 (2008), S. C., 453 Mass. 1102 (2009) ([A] defendant's motive for attacking the victim is relevant). Finally, the fact that the Commonwealth used testimony at trial that it had previously stated it would not use does not, by itself, amount to prosecutorial misconduct. Also, [r]ulings on relevance are matters of discretion as to which we accord the trial judge deference. Commonwealth v. Saunders, 45 Mass.App.Ct. 340, 341342 (1998), S. C., 428 Mass. 1106 (1998). The defendant makes no showing that he relied to his detriment on any previous representation by the Commonwealth concerning what it intended to introduce at trial. See Commonwealth v. Lavin, 42 Mass.App.Ct. 711, 714 (1997) (a court will enforce a promise made by a prosecuting attorney

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970 N.E.2d 813 82 Mass.App.Ct. 1106, 970 N.E.2d 813, 2012 WL 2601933 (Mass.App.Ct.) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 82 Mass.App.Ct. 1106, 2012 WL 2601933 (Mass.App.Ct.))

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where the defendant relies upon it). This is apparent from the fact that defense counsel never informed the trial judge of the earlier prosecutor's statement, even though she filed and argued a pretrial motion in limine to preclude admission of other uncharged conduct evidence. Moreover, she did not cite the prosecutor's statement when she objected at trial to Brown's testimony about the recovery of the crack pipe and a small bag of white powder. Nor did defense counsel raise the issue when the pipe itself was offered and admitted in evidence. Absent such reliance, the claim of prosecutorial misconduct must fail. Conclusion. As to the charge of possession of a Class C substance, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. As to the charge of assault and battery on a public employee, the judgment is affirmed. *4 So ordered. Mass.App.Ct.,2012. Com. v. McBride 82 Mass.App.Ct. 1106, 970 N.E.2d 813, 2012 WL 2601933 (Mass.App.Ct.) Briefs and Other Related Documents (Back to top) 2011 WL 804665 (Appellate Brief) Brief for the Commonwealth (Feb. 22, 2011) Original Image of this Document (PDF) 2010 WL 4338078 (Appellate Brief) Brief and Record Appendix for the Defendant (Oct. 13, 2010) Original Image of this Document (PDF) 2010-P-1358 (Docket) (Aug. 3, 2010)

Judges Agnes, Hon. Peter W. Jr. Commonwealth of Massachusetts Appeals Court Boston, Massachusetts 02108 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler Rapoza, Hon. Phillip G. Commonwealth of Massachusetts Appeals Court Boston, Massachusetts 02108 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler END OF DOCUMENT

Judges and Attorneys(Back to top) Judges

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Date of Printing: Dec 12, 2013 KEYCITE Com. v. McBride, 82 Mass.App.Ct. 1106, 970 N.E.2d 813 (Mass.App.Ct., Jul 06, 2012) (NO. 10-P-1358) History Direct History => 1 Com. v. McBride, 82 Mass.App.Ct. 1106, 970 N.E.2d 813 (Mass.App.Ct. Jul 06, 2012) (Table, text in WESTLAW, NO. 10-P-1358) Review Denied by 2 Com. v. McBride, 463 Mass. 1107, 974 N.E.2d 643 (Mass. Sep 11, 2012) (Table) Court Documents Appellate Court Documents (U.S.A.) Mass.App.Ct. Appellate Briefs 3 COMMONWEALTH, v. George MCBRIER., 2010 WL 4338078 (Appellate Brief) (Mass.App.Ct. Oct. 13, 2010) Brief and Record Appendix for the Defendant (NO. 2010-P-1358) 4 COMMONWEALTH OF MASSACHUSETTS, Appellee, v. George D. MCBRIDE a/k/a McBrier, Appellant., 2011 WL 804665 (Appellate Brief) (Mass.App.Ct. Feb. 22, 2011) Brief for the Commonwealth (NO. 10-P-1358) Dockets (U.S.A.) Mass.App.Ct. 5 COMMONWEALTH v. GEORGE D. MCBRIDE A/K/A MCBRIER, NO. 2010-P-1358 (Docket) (Mass.App.Ct. Aug. 3, 2010)

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Date of Printing: Dec 12, 2013 KEYCITE Com. v. McBride, 82 Mass.App.Ct. 1106, 970 N.E.2d 813 (Mass.App.Ct., Jul 06, 2012) (NO. 10-P-1358)

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Date of Printing: Dec 12, 2013 KEYCITE Com. v. McBride, 82 Mass.App.Ct. 1106, 970 N.E.2d 813 (Mass.App.Ct. Jul 06, 2012) (NO. 10-P-1358) No references were found within the scope of KeyCite's citing case coverage.

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