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NOTICE: THIS IS AN UNPUBLISHEDOPINION.

Appeals Court of Massachusetts.COMMONWEALTH

v.George D. McBRIDE.FN1

FN1. Also known as George D.McBrier.

No. 10–P–1358.July 6, 2012.

By the Court (RAPOZA, C.J., COHEN &AGNES, JJ.).

MEMORANDUM AND ORDER PURSU-ANT TO RULE 1:28

*1 A District Court jury convicted thedefendant of possession of a class C sub-stance in violation of G.L. c. 94C, § 34,and committing assault and battery on apublic employee in violation of G.L. c.265, § 13D. The defendant subsequentlybrought a new trial motion, which wasdenied by the trial judge after hearing. Thedefendant's direct appeal of his convictionshas been consolidated with his appeal fromthe denial of his new trial motion.

Discussion. The defendant raises fiveclaims on appeal: (1) the motion judgeerred in denying a pretrial motion to sup-press evidence; (2) the trial judge's erro-neous admission in evidence of a drug cer-tificate was not harmless beyond a reason-able doubt; (3) he received ineffective as-

sistance of counsel at trial; (4) the Com-monwealth violated due process by failingto preserve exculpatory evidence; and (5)the use of certain testimony at trial consti-tuted prosecutorial misconduct warrantingdismissal of the charges against him. Westart by addressing the defendant's claimconcerning the drug certificate, as our de-termination on that matter also resolves hisclaims concerning the motion to suppressand ineffective assistance of counsel.

Drug certificate. In denying the defend-ant's new trial motion, the judge ruled thatwhile the admission of the drug certificatewas contrary to Melendez–Diaz v. Mas-sachusetts, 557 U.S. 305 (2009), the errorwas harmless beyond a reasonable doubt.We disagree. The drug certificate was theonly evidence to show that the defendant infact possessed a class C substance, and theCommonwealth in its brief concedes thatthe certificate's admission was not harm-less. Consequently, in the absence of otherproof, the defendant's conviction for pos-session of a class C substance cannot stand.See Commonwealth v. Parenteau, 460Mass. 1, 10–11 (2011). This fact rendersmoot the suppression and ineffective assist-ance claims raised by the defendant, bothof which pertain to the drug possessioncharge. We thus confine our further reviewto the remaining issues, being the Com-monwealth's failure to preserve evidenceand prosecutorial misconduct.

Failure to preserve evidence. At issueis a surveillance video recorded in theFramingham police department holdingcell area during the night of the defendant'sarrest, July 10, 2007. The defendant arguesthat this video recording contained exculp-atory evidence and the Commonwealth'sfailure to preserve it violated his due pro-

970 N.E.2d 813 Page 182 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 thecharges against him.FN2

FN2. According to an affidavit fromSergeant Christopher Montuori thatwas admitted in evidence at thehearing on the defendant's new trialmotion, Framingham police recor-ded activity in the holding cell areaon VHS tape, although these tapeswere routinely recorded over afterthirty days. The defendant's first re-quest for a copy of the surveillancevideo of the holding cell area fromthe night of his arrest did not comeuntil February, 2008, approximatelyseven months after his arrest, bywhich time the tape would havebeen recorded over.

The defendant was convicted of push-ing Sergeant Scott Brown in the course of astruggle leading up to a body cavity searchduring the booking process. Based on thetrial testimony of four police officers, thejury reasonably could have concluded thefollowing. Detective Leonard Pini, whileperforming a pat-down of the defendant atthe booking counter, came to suspect thatthe defendant had something hidden in hisbuttocks area because he was clenching hisbuttocks and was unable to spread his legsapart fully. Pini then asked the defendant toaccompany him to a holding cell so hecould conduct a further search.

*2 The defendant accompanied officersinto a juvenile holding cell, which was theclosest cell to the booking desk. Brown andPini asked him to remove his pants and un-derwear or hand over the item or items theofficers believed he was hiding. The de-fendant initially refused, saying he was be-ing sexually harassed. He then removedonly his pants but not his underwear. Fol-lowing a brief verbal exchange, a struggle

ensued. At a point, the officers forcibly re-moved the defendant's underpants, and ulti-mately recovered from his buttocks abroken, glass crack pipe along with a smallplastic bag containing a white powder sub-stance. The defendant was not chargedwith possession of those items, however.

The defendant claimed at trial that hewas “beat up” by police without provoca-tion and that the assault and battery chargeagainst him grew from that altercation. Hetestified in his own defense and provided adifferent version of the events leading up tothe cavity search. His attorney highlightedthe police policy of taping the holding cellarea and emphasized the lack of a videofrom the night in question, suggesting thatthere had been what amounted to a policecoverup. She also noted that Brown wrotethe only report on the incident, eventhough at least three officers were in-volved. In his new trial motion and in thisappeal, the defendant argues that any videowould have been exculpatory because itwould have conclusively proven whathappened on the night of his arrest, corrob-orating his story.

In considering whether the failure topreserve the video recording warrants dis-missal of the charges against the defendant,we must ask two questions: whether the de-fendant has reasonably shown that the re-cording could have been exculpatory and,if so, the appropriateness and extent of anyremedial action taken. See Commonwealthv. Williams, 455 Mass. 706, 718–719 & n.9 (2010), citing Commonwealth v. Neal,392 Mass. 1, 12 (1984).

To meet that initial burden, the defend-ant “must establish a ‘reasonable possibil-ity, based on concrete evidence rather thana fertile imagination, that access to the[destroyed material] would have produced

970 N.E.2d 813 Page 282 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.’ “ SeeCommonwealth v. Sasville, 35Mass.App.Ct. 15, 20 (1993), quoting fromCommonwealth v. Neal, supra. Only if adefendant meets that initial burden does acourt proceed to determine a proper rem-edy, balancing the Commonwealth's culp-ability, the materiality of the evidence, andthe prejudice to the defendant. Common-wealth v. Williams, supra at 718.

Even were we to assume the unavail-able video recording was potentially ex-culpatory, we would conclude that theproper remedy was not to dismiss the com-plaint, but rather to allow the defendant “toquestion about and comment upon theCommonwealth's failure to produce thevideotape.” Commonwealth v. Cameron, 25Mass.App.Ct. 538, 549 (1988) (lost book-ing video of drunk driving defendant war-ranted new trial at which she could ques-tion Commonwealth witnesses regardingmissing evidence and comment on its ab-sence). That occurred in this case. Here,the defendant's attorney cross-examinedPini about the fact that a video recordinghad been made on the night in question andwas no longer available, which providedsupport for the defendant's suggestion of apolice coverup. This constituted sufficientremedial action. Commonwealth v. Sas-ville, supra at 27–28 (dismissal of com-plaint based on lost or destroyed poten-tially exculpatory evidence appropriate ab-sent another effective remedy).

*3 Prosecutorial misconduct. At trial,the defendant objected to police testimonyabout the crack pipe and a small bag ofwhite powder found during the body cavitysearch. On appeal, he claims that the testi-mony was irrelevant because he was notcharged with possession of those items. Hefurther contends that the use of that testi-

mony constituted prosecutorial misconduct,claiming that an assistant district attorneywho handled the pretrial motion to sup-press (although not the trial itself) hadstated that the Commonwealth would notuse the challenged testimony at trial.

Based on the record, we conclude thatthe testimony in issue was relevant toprovide context for the actions of the policeofficers, especially considering the defend-ant's assertion that he was the victim of anunprovoked beating. The officers' testi-mony regarding the initial justification forthe defendant's body cavity search, i.e. thebehavior that caused them to suspect hehad drugs hidden in his buttocks, was maderelevant by the defendant's claim of unpro-voked police abuse. Cf. Commonwealth v.Aviles, 461 Mass. 60, 69–70 (2011). Fur-ther, the fact that the search actually led tothe recovery of contraband went to the de-fendant's potential motive for both resistingthe search and pushing Brown. See Com-monwealth v. Boyd, 73 Mass.App.Ct. 190,196 (2008), S. C., 453 Mass. 1102 (2009)(“[A] defendant's motive for attacking thevictim is relevant”).

Finally, the fact that the Common-wealth used testimony at trial that it hadpreviously stated it would not use does not,by itself, amount to prosecutorial miscon-duct. Also, “[r]ulings on relevance are mat-ters of discretion as to which we accord thetrial judge deference.” Commonwealth v.Saunders, 45 Mass.App.Ct. 340, 341–342(1998), S. C., 428 Mass. 1106 (1998). Thedefendant makes no showing that he reliedto his detriment on any previous represent-ation by the Commonwealth concerningwhat it intended to introduce at trial. SeeCommonwealth v. Lavin, 42 Mass.App.Ct.711, 714 (1997) (a court will enforce apromise made by a prosecuting attorney

970 N.E.2d 813 Page 382 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 isapparent from the fact that defense counselnever informed the trial judge of the earlierprosecutor's statement, even though shefiled and argued a pretrial motion in limineto preclude admission of other unchargedconduct evidence. Moreover, she did notcite the prosecutor's statement when sheobjected at trial to Brown's testimony aboutthe recovery of the crack pipe and a smallbag of white powder. Nor did defensecounsel raise the issue when the pipe itselfwas offered and admitted in evidence. Ab-sent such reliance, the claim of prosecutori-al misconduct must fail.

Conclusion. As to the charge of posses-sion of a Class C substance, the judgmentis reversed, the verdict is set aside, andjudgment shall enter for the defendant. Asto the charge of assault and battery on apublic employee, the judgment is affirmed.

*4 So ordered.

Mass.App.Ct.,2012.Com. v. McBride82 Mass.App.Ct. 1106, 970 N.E.2d 813,2012 WL 2601933 (Mass.App.Ct.)

Briefs and Other Related Documents (Backto top)

• 2011 WL 804665 (Appellate Brief) Brieffor the Commonwealth (Feb. 22, 2011)Original Image of this Document (PDF)• 2010 WL 4338078 (Appellate Brief)Brief and Record Appendix for the Defend-ant (Oct. 13, 2010) Original Image of thisDocument (PDF)• 2010-P-1358 (Docket) (Aug. 3, 2010)

Judges and Attorneys(Back to top)

Judges

Judges

• Agnes, Hon. Peter W. Jr.Commonwealth of Massachusetts AppealsCourtBoston, Massachusetts 02108Litigation History Report | Judicial Re-versal Report | Judicial Expert ChallengeReport | Profiler

• Rapoza, Hon. Phillip G.Commonwealth of Massachusetts AppealsCourtBoston, Massachusetts 02108Litigation History Report | Judicial Re-versal Report | Judicial Expert ChallengeReport | Profiler

END OF DOCUMENT

970 N.E.2d 813 Page 482 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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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 by2 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 (AppellateBrief) (Mass.App.Ct. Oct. 13, 2010) Brief and Record Appendix for the De-fendant (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)

© 2013 Thomson Reuters. All rights reserved.

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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