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15-P-227 Appeals Court

COMMONWEALTH vs. CARROLL N. HEATH.1

No. 15-P-227.

Essex. February 11, 2016. - April 26, 2016.

Present: Kafker, C.J., Rubin, & Agnes, JJ.

Practice, Criminal, Loss of evidence by prosecution, 

Preservation of evidence, New trial. Evidence, 

Exculpatory, Videotape, Relevancy and materiality.

Complaint received and sworn to in the Newburyport Division 

of the District Court Department on May 30, 2013. 

The case was tried before Allen G. Swan, J., and a motion 

for a new trial was heard by him.

Christine DeBernardis for the defendant.

Catherine P. Sullivan, Assistant District Attorney, for the 

Commonwealth.

KAFKER, C.J. The defendant, Carroll N. Heath, was 

convicted of assault and battery on a police officer pursuant to 

 

1 The defendant uses the name Carroll Heath-Willis in his 

pleadings, but as is our custom, we take the defendant's name as 

it appears on the complaint. See Commonwealth v. Supplee, 45 

Mass. App. Ct. 265, 265 n.1 (1998).
2

G. L. c. 265, § 13D, and also of disturbing the peace.2 He 

appeals the judge's denial of his motion for a new trial on the 

assault and battery charge, claiming that he was denied due 

process of law by the Commonwealth's failure to preserve a video 

recording of incidents in the booking room of the Haverhill 

police station that led to the assault and battery charge.3 We 

reverse.

1. Background. a. The events of May 29. On May 29, 

2013, the defendant was arrested for disturbing the peace. He 

had entered the emergency room at Merrimac Valley Hospital in 

Haverhill, demanded a sandwich, a shower, and that someone do 

his laundry, and let loose a tirade of racist, sexist, and other 

offensive comments at medical personnel when they told him that 

he must first see a physician before they could provide him with 

food and that they "did not have a shower in the emergency 

department." Haverhill police Officer Dennis Moriarty, who was 

called to the hospital, tried to calm the defendant and escorted 

 

2 The defendant's conviction of disturbing the peace was 

placed on file with the defendant's consent and is not before 

us. See Commonwealth v. Lites, 67 Mass. 815, 816 (2006). The 

defendant was also charged with threatening to commit a crime, 

but he was found not guilty on that charge.

3 The defendant has been represented by at least three 

different attorneys over the course of these proceedings. We 

refer to them as pretrial counsel (who filed the motions to 

produce and preserve the booking video), trial counsel, and 

appellate counsel (who represented the defendant in connection 

with his motion for a new trial and on appeal before this 

court).
3

him from the hospital building while the defendant verbally 

threatened to hack him to pieces with a machete. The defendant 

then proceeded to a neighboring property, and Moriarty was 

called to that location by a resident when the defendant refused 

to leave. Moriarty then arrested the defendant and took him to 

the police station for booking. 

Officer Moriarty testified at trial that because the 

defendant "needs crutches to walk . . . [and] has no use of his 

legs," Moriarty did not place the defendant in handcuffs at the 

time of the arrest. Moriarty testified that he asked the 

defendant during booking to remove various articles from his 

person, including a baseball cap, socks, and shoes, and Moriarty 

informed the defendant that if he did not remove the items

voluntarily, Moriarty would do it himself. Moriarty testified 

that when the defendant refused to remove the aforementioned 

articles, Moriarty removed the defendant's cap. The defendant

then forcefully struck Moriarty in the chest. Moriarty 

testified that he was wearing a "bullet resistant trauma vest[]" 

at the time, and the punch left "no marks" and "didn't require 

any type of medical attention." Moriarty testified that he and 

two other officers subdued the defendant and "dragged him into 

his cell."

During Officer Moriarty's testimony, he was asked about 

video recording in the booking room. On direct examination, he 
4

testified that there was a "means of recording" what was going 

on in the booking room and that he did not know "who [was] . . .

in charge of maintaining" that recording device. He also 

testified that he was not permitted to view the video recording 

nor did he have access to it. On cross-examination, Moriarty 

testified that "there were security cameras there that 

essentially captured the entire booking process." He also 

testified on cross-examination that he did not "attempt to talk 

to any other officers, superiors or other supervisors . . . to 

obtain that booking video."

During the charge conference, the defendant requested an 

instruction on missing evidence, i.e., the booking video, which, 

he informed the judge, had been requested and had been the 

subject of a motion to preserve. It was clear at this time that 

the judge, the prosecutor, and trial counsel understood that the 

video had not been preserved.

4 The defendant proposed that the 

judge instruct the as follows:

 

4 Although the details of the discussion regarding the jury 

instruction are marked as inaudible, the issue is not in doubt. 

Trial counsel argued in his opening statement that "the 

Haverhill [p]olice actually have the ability to videotape this 

process. They actually get this on to get the actual booking 

where this alleged incident occurred. You're not going to see a 

videotape, ladies and gentlemen of the jury." The motion to 

preserve the booking video, filed by pretrial counsel, had been 

allowed on June 27, 2013, without opposition from the 

Commonwealth. The prosecutor had raised the issue of the 

missing evidence instruction to the judge before jury 
5

"[I]f the Commonwealth, . . . could have gathered and 

produced particular evidence that would have been helpful 

to your deliberations in this matter, it is logical to 

assume that the government would naturally offer that 

evidence at trial. 

"If then, without explanation, . . . that evidence is 

not presented at trial, you may infer that the potential 

. . . evidence would have been unfavorable to the 

Commonwealth."

The judge denied the request and the defendant objected. 

In closing, trial counsel conceded the disturbing the peace 

charge but contested the assault and battery, arguing:

"[Y]ou heard that the whole booking process is

recorded. There's video cameras that record this. Officer 

Moriarty knows that these booking videos can be used as 

evidence. . . . But there's no booking video. We only 

know what happened from Officer Moriarty's testimony. We 

don't have a booking video to either corroborate his story 

or dispel it. But don't you find it a little problematic 

if the Commonwealth is trying to get a conviction and they 

have a booking video that backs his story up? You should 

be watching it right now. You should have already watched 

it. But you don't have it here today."

The prosecutor ended his closing by addressing the booking 

video:

"I'd simply ask you not [to] speculate as the Judge 

will instruct you about what was in the video or why 

 

empanelment. On July 21, 2014, at an evidentiary hearing on the 

defendant's motion for a new trial, the prosecutor told the 

judge that on the date the defendant's motions to produce and 

preserve the booking video had been allowed, "[she] did sign the 

conference report with [defendant's pretrial counsel], and [she] 

did agree that the booking video would be provided." The motion 

judge, who was also the trial judge, explained that he had given 

trial counsel "full leeway without any objection from the 

District Attorney to argue to the jury the absence of a video in 

the booking room." The issue for the judge was not whether the 

video had been made and not preserved but who was responsible 

for its deletion.
6

there's no video or anything like that. And simply confine 

yourself to the evidence before you. And the evidence 

before you is the officer told you he didn't know how to 

get the video. . . . Beyond that, there's no evidence 

before you."

b. New trial motion. The defendant filed a motion for new

trial, contending that he was denied due process of law by the 

Commonwealth's failure to preserve the booking video. The 

motion was supported by affidavits from the defendant and his 

pretrial counsel. The motion judge (who was also the trial 

judge) conducted an evidentiary hearing. The judge found that

"A pretrial hearing was held on June 3, [2013,] and 

another on June 27. At the second pretrial, the 

defendant's court-appointed attorney filed a discovery 

motion requesting that the police booking video be 

preserved. The court allowed the motion, and defense 

counsel agreed in open court to contact the police 

department directly to obtain the video.

"While apparently voicemail messages were left by 

counsel for Haverhill Police Sergeant Brian Smith[,] . . .

Smith did not receive them, due in part . . . to problems 

in the department's telephone system . . . ."

The judge credited Sergeant Smith's testimony at the 

evidentiary hearing to the effect that he did not speak to 

pretrial counsel about the video until he saw him at Haverhill 

District Court on an unrelated matter in mid-July, 2013. When 

Smith checked on the booking video, he discovered that it had 

been erased. Smith testified that he had never received a copy 

of the motion to preserve the video. The judge found:

"Even assuming the video to be potentially exculpatory

-- something now we will never know -- and material, there 

is no culpability on the part of the Commonwealth. The 
7

request to preserve the video was not made until 29 days 

after the recording of the assault in the booking room was 

made.[5] Given that the video system's self-purging 

mechanism operates 30 days or sooner after recording, the 

request when made may have already been untimely. 

Moreover, since counsel had assumed the responsibility of 

obtaining the video and, by his own calculation, did not 

make contact with the officer responsible for evidence 

preservation until 33 days by telephone (July 1) and 43 

days in person (July 11) after the recording was made (May 

29), the Commonwealth cannot be charged with negligent or 

intentional culpability in the destruction of the video."

The judge ultimately found that "any prejudice to the defendant 

was obviated by allowing defense counsel 'to question about and 

comment upon the Commonwealth's failure to produce the 

videotape.' Commonwealth v. Cameron, 25 Mass. App. Ct. 538, 549 

(1988)." 

2. Denial of the motion for new trial. a. Standard of 

review. "It is well established that, '[i]n reviewing the 

denial or grant of a new trial motion, we examine the motion 

judge's conclusion only to determine whether there has been a 

 

5 The judge appears to refer to the filing of the motion to 

preserve, which he referred to as "the request to preserve." 

During the hearing, appellate counsel challenged the judge's 

calculation that thirty days had elapsed between the recording 

of the booking video and the date on which pretrial counsel had 

left his first voice mail message for Sergeant Smith, claiming 

that the judge's calculation was off by one day. The 

Commonwealth concedes that the defendant's calculation was 

probably correct. Because Officer Moriarty was not first 

dispatched until about 10:00 P.M. on May 29, 2013, if pretrial 

counsel left his first voice mail message for Sergeant Smith 

before that time on June 28, less than thirty full days would 

have elapsed between that voice mail message and the booking 

room incident. Regardless of who is correct, our decision in 

this case does not rely on that distinction.
8

significant error of law or other abuse of discretion.'" 

Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting from 

Commonwealth v. Wright, 469 Mass. 447, 461 (2014). We typically 

"grant special deference to a decision on a motion for a new 

trial of the judge who was also the trial judge." Commonwealth

v. Tucceri, 412 Mass. 401, 412 (1992). Nevertheless, because 

the defendant's "new trial claim is constitutionally based, this 

court will exercise its own judgment on the ultimate factual as 

well as legal conclusions." Id. at 409. Commonwealth v. Cohen

(No. 1), 456 Mass. 94, 105 (2010).

b. Test to determine remedy for the loss of the video. In 

Commonwealth v. Williams, 455 Mass. 706, 716-717 (2010), quoting 

from Commonwealth v. Cintron, 438 Mass. 779, 784 (2003), the 

Supreme Judicial Court stated:

"A defendant who seeks relief from the loss or 

destruction of potentially exculpatory evidence has the 

initial burden, . . . to establish a reasonable 

possibility, based on concrete evidence rather than a 

fertile imagination, that access to the [lost or destroyed 

evidence] would have produced evidence favorable to his 

cause. . . . If he meets his initial burden, a balancing 

test is employed to determine the appropriateness and 

extent of remedial action. The courts must weigh the 

culpability of the Commonwealth, the materiality of the 

evidence, and the potential prejudice to the defendant."6

 

6 In some circumstances, a defendant is not required to meet 

the initial burden: "[W]here the Commonwealth has acted in bad 

faith or recklessly, resulting in the loss or destruction of 

evidence, the defendant may be independently entitled to a 

remedy even without meeting [this initial burden]." Williams, 
9

We apply this analysis to the case before us. 

i. Defendant's initial burden. Although the judge 

assumed that the video would have been potentially exculpatory 

to move on to the balancing test, we conduct our own analysis of 

whether the defendant met his initial burden as a matter of law. 

The defendant's initial burden to establish by means of 

"concrete evidence" that the destroyed evidence was exculpatory 

does not require definitive proof of what the video did, in 

fact, show; "because the [video has] been destroyed, it is no 

longer possible to determine whether the defendant would have 

obtained any evidence of an exculpatory nature had the [video] 

been made available to him for inspection or examination." 

Commonwealth v. Neal, 392 Mass. 1, 12 (1984). The Supreme 

Judicial Court reiterated this point in Williams, supra at 714-

715, quoting from Neal, supra:

"To require the defendant at this stage to prove that 

the [lost or destroyed evidence at issue] [was] in fact 

exculpatory would . . . convert the [Commonwealth's duty to 

disclose exculpatory evidence] . . . into an empty promise, 

easily circumvented by suppression of evidence by means of 

destruction rather than mere failure to reveal" (quotations 

omitted). 

 

455 Mass. at 718. In the instant case, while the judge did not 

specifically reach the issue of bad faith in his order denying 

the defendant's motion for a new trial, his findings do not 

support the view that the Commonwealth exhibited bad faith in 

failing to prevent the deletion of the booking video.
10

The "reasonable possibility, based on concrete evidence"

formulation does, however, require more from a defendant than 

"speculation or surmise" about whether he might have uncovered 

something unknown to him having exculpatory value if he had had 

an opportunity to examine the evidence before its destruction. 

Williams, 455 Mass. at 717. The defendant must articulate what 

exculpatory information he believes the evidence would have 

revealed, and there must be a "reasonable possibility" that the 

evidence could have revealed such exculpatory information prior 

to its loss or destruction. Compare Commonwealth v. Woodward, 

427 Mass. 659, 677-678 & n.33 (1998) (defendant established 

"reasonable possibility" that exculpatory evidence would have 

been found when Commonwealth lost tissue sample, "the bullseye 

of the medical problem," which was important issue at trial), 

and Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 15, 22-23 

(1993) (defendant established that Commonwealth destroyed 

"potentially exculpatory evidence" in rape case), with Williams, 

455 Mass. at 720 ("defendant was unable to demonstrate a 

reasonable possibility that the lost opportunity to observe the

testing [of a blood sample] was exculpatory"), and Commonwealth

v. Meas, 467 Mass. 434, 448 n.16, cert. denied, 135 S. Ct. 150

(2014) ("defense counsel offered only speculation in claiming 

that the lost [video] footage would have been exculpatory" where

two of three video recordings preserved).
11

In the instant case, the defendant's affidavit contends 

specifically that the booking video would have shown that he did 

not assault Officer Moriarty and that Moriarty, in fact, 

assaulted him. See Commonwealth v. Carey, 26 Mass. App. Ct. 

339, 340 (1988) ("Appropriate use of videotapes as evidence 

includes the videotape record of the booking of a defendant"). 

Moriarty, the Commonwealth's only trial witness concerning the 

incidents at booking, testified that, "there were security 

cameras there that essentially captured the entire booking 

process." The credibility of Moriarty was critical, and if the 

booking video had shown that the defendant had not assaulted 

Moriarty, it likely would have been outcome determinative on the 

assault and battery charge. See Neal, supra at 11, quoting from 

Commonwealth v. Collins, 386 Mass. 1, 8 (1982) ("[E]vidence 

tending to impeach the credibility of a key prosecution witness 

is 'clearly exculpatory'").

7 "Any conclusion on this record that 

the videotape has no exculpatory potential could rest only on an 

arbitrary preference for the officer['s] testimony over [the 

affidavit] of the defendant." Commonwealth v. Cameron, 25 Mass. 

App. Ct. 538, 547 (1988). The defendant has therefore

"establish[ed] a reasonable possibility" that the booking video 

would have been exculpatory. Williams, 455 Mass. at 716,

 

7 Of course, the booking video also could have established 

definitive evidence of the defendant's guilt as well.
12

quoting from Cintron, 438 Mass. at 784. The judge thus did not 

err in assuming that the video was exculpatory.

ii. The balancing test. We next consider the judge's 

application of the balancing test that "weigh[s] the culpability 

of the Commonwealth, the materiality of the evidence, and the 

potential prejudice to the defendant." Williams, supra, quoting 

from Cintron, supra. We conclude that the judge erroneously 

determined that the Commonwealth had no culpability because he 

misapprehended when the Commonwealth's duty to preserve the

evidence attached. We also conclude that he erroneously 

determined that there was no prejudice to the defendant, as the 

combination of the Commonwealth's failure to preserve and 

produce the booking video, the judge's declining to give the 

jury any instruction on how to consider the evidence, and the 

prosecutor's argument to the jury that they should not speculate 

why there was no video did in fact prejudice the defendant. "As 

a result, the judge did not properly calibrate the factors in 

the balancing test and underestimated both the culpability of 

the Commonwealth and the potential prejudicial effect of the 

destruction of the evidence," as well as the appropriate remedy. 

See Sasville, 35 Mass. App. Ct. at 23.

A. Culpability. The judge's finding that "there [was] no 

culpability on the part of the Commonwealth" necessarily 

presupposed that the Commonwealth's duty to preserve exculpatory 
13

evidence attaches only when a motion to preserve the evidence

has first been made. Such a conclusion is legal error. As the 

defendant and the Commonwealth both recognized at oral argument, 

in Sasville, 35 Mass. App. Ct. at 18-19, this court confirmed

that the duty to preserve material, potentially exculpatory 

evidence arises prior to such a motion.

"It has been held that the Commonwealth has the duty not to 

destroy exculpatory evidence; rather, it must preserve such 

evidence for the defendant to inspect, examine, or perform 

tests on, if he so chooses. This obligation grows out of 

the Commonwealth's duty to disclose evidence favorable to 

an accused upon request . . . where the evidence is 

material either to guilt or to punishment . . . . To hold 

otherwise would allow the Commonwealth's duty to disclose 

exculpatory evidence to be avoided by destroying vital 

evidence before prosecution begins or before defendants 

hear of its existence."

Ibid. (quotations and citations omitted). In Commonwealth v. 

Laguer, 448 Mass. 585, 595 n.27 (2007), the Supreme Judicial 

Court cautioned that "the Commonwealth's duty to disclose 

exculpatory evidence is not dependent on a request by the 

defense for such evidence. The Commonwealth has a duty to 

disclose all exculpatory evidence, requested or not." 

We therefore conclude that in the instant case, where the 

police department had a video recording of an alleged crime 

committed in its booking area, with which the defendant was 

charged, the Commonwealth should have required no further 

notification by the defendant to recognize the need to preserve
14

that video evidence.8 See Sasville, supra at 23-24 ("The worth 

of such [evidence] to establish conclusively [the guilt or 

innocence of the defendant] would be known to any professional 

in the criminal justice system"). Contrast Commonwealth v. 

Jewett, 17 Mass. App. Ct. 354, 359-360, S.C., 392 Mass. 558 

(1984) (defendant must make request for specialized handling of 

evidence where Commonwealth would not otherwise be aware of need 

for such handling); Commonwealth v. Mitchell, 38 Mass. App. Ct. 

184, 192-193 (1995) (same).

We conclude that the Commonwealth's breach of its duty to 

preserve that evidence was negligent.

9 See Cameron, 25 Mass. 

App. Ct. at 548. "Negligence or inadvertence are less culpable 

than bad faith, but they are nevertheless culpable and must be 

accounted for in the balancing procedure."10 Commonwealth v. 

 

8 The actions of the police in allowing the booking video to 

be deleted are imputed to the prosecutor. See Commonwealth v. 

Olszewski, 401 Mass. 749, 753 (1988), S.C., 416 Mass. 707 

(1993), cert. denied, 513 U.S. 835 (1994). This is true even if 

the prosecutor did not have actual knowledge of the existence of 

the booking video. See Commonwealth v. St. Germain, 381 Mass. 

256, 261 n.8 (1980); Commonwealth v. Gallarelli, 399 Mass. 17, 

20 n.4 (1987).

9 While we independently arrive at this conclusion, the 

Commonwealth correctly conceded at oral argument before this 

court that there was at least negligent culpability on the 

Commonwealth's part for failing to preserve the booking video.

10 The judge's findings regarding the lengthy delay in the 

defendant's request for the booking video, and the judge's

crediting of Sergeant Smith's testimony at the motion hearing 

that he did not receive the voice mail messages prior to the 
15

Noonan, 48 Mass. App. Ct. 356, 360 n.5 (1999), quoting from 

Commonwealth v. Olszewski, 401 Mass. 749, 757 n.7 (1988), S.C., 

416 Mass. 707 (1993), cert. denied, 513 U.S. 835 (1994). In 

finding the Commonwealth not culpable, the judge erroneously 

failed to consider and then weigh the Commonwealth's negligence 

in the balancing test.

B. Materiality of the booking video. The trial judge did 

not reach the issue of materiality, but assumed that the booking 

video was material for the sake of conducting the balancing 

test. We now consider the issue ourselves.

We must first determine the appropriate standard to apply 

to review the materiality of the booking video. "The definition 

of 'material' varies with the specificity of the defendant's 

discovery request." Commonwealth v. Montanez, 410 Mass. 290, 

297 n.8 (1991). Prior to trial, the defendant's motions to 

preserve and produce the booking video were allowed without 

opposition from the Commonwealth. These motions represented 

"specific request[s which] 'provide[d] the Commonwealth with 

notice of the defendant['s] interest in a particular piece of 

evidence.'" Commonwealth v. Jackson, 388 Mass. 98, 110 (1983),

quoting from Commonwealth v. Wilson, 381 Mass. 90, 109 (1980). 

As such, to establish the materiality of the evidence, the 

 

thirty-day scheduled erasure of the video, support a finding of 

negligence rather than bad faith.
16

"defendant need only demonstrate that a substantial basis exists 

for claiming prejudice from the nondisclosure." Williams, 455 

Mass. at 721 n.12, quoting from Tucceri, 412 Mass. at 412.

As was the case in Sasville, 35 Mass. App. Ct. at 25-26,

the credibility of "the key prosecution witness . . . was of 

major importance." If the booking video had demonstrated that 

the defendant had not assaulted Officer Moriarty,

"such evidence would have undoubtedly undermined 

[Moriarty's] credibility in the eyes of the jury. It would 

also have provided a theory of defense to the defendant, 

[that the police had attempted to cover up an assault by 

Moriarty against the defendant, as alleged in the 

defendant's affidavit]. . . . Therefore, the destroyed 

evidence was highly material."

Ibid.

The defendant has demonstrated that destruction of the 

booking video prior to its disclosure to him created a 

substantial basis for a claim of prejudice. Williams, supra. 

This factor of the balancing test thus favors the defendant, and 

the judge did not err in assuming that the video was material.

C. Prejudice to the defendant's case. We disagree with 

the judge's conclusion that "[t]he defendant was not prejudiced 

by the failure to preserve [the booking video]" because the 

judge allowed the defendant to cross-examine Moriarty and to

comment on the missing video during his opening statement and 

closing argument. We emphasize that the absence of the video 
17

denied the defendant the most concrete evidence available to 

impeach Moriarty. See Sasville, 35 Mass App. Ct. at 27 ("[I]n 

the absence of any concrete evidence . . ., the success of any 

impeachment would be remote, at best"). Although we have 

recognized that in certain circumstances the ability "to 

question and comment about the fact that [the defendant] was 

videotaped but the Commonwealth does not now have that 

evidence," would be a potential remedy to such prejudice, we 

have not concluded that such questioning or commentary is a 

cure-all. Cameron, 25 Mass. App. Ct. at 549.

Here, the ability to question the Commonwealth about the 

loss of the video was not alone sufficient, particularly in

light of the judge's declining to give a missing evidence

instruction and the prosecutor's closing argument that the jury 

should listen to the judge's instructions, confine itself to the 

evidence, and not speculate about why there is no video. In the 

absence of any instruction from the judge about how to consider 

the missing evidence, the potential for juror confusion was 

substantial. Indeed the judge's standard instructions appeared 

to confirm the prosecutor's closing argument:

"You are not to engage in any guesswork about any 

unanswered questions that remain in your mind or to 

speculate about what the real facts might or might not have 

been. . . . You are to decide what the facts are solely 

from the evidence admitted in the case and not from 

suspicion or conjecture. The evidence consists of the 
18

testimony of witnesses as you recall it. . . . Now some 

things that occur during a trial are not evidence and you 

may not consider them as evidence in deciding the facts of 

the case. . . . The opening statements and closing 

arguments of the lawyers are not a substitute of the 

evidence."

In light of the combined effects of the prosecutor's closing 

argument and the judge's initial and final instructions to the 

jury, "a comment by defense counsel in his closing argument upon 

the 'Commonwealth's failure to produce the [missing evidence]'

would not have provided a fair trial." Sasville, 35 Mass. App. 

Ct. at 28. The third factor of prejudice thus favors the 

defendant. 

c. Remedy for prejudice to defendant's case. "Absent a 

clear abuse of discretion, we will not disturb the judge's 

decision concerning an appropriate remedy" for lost or destroyed 

evidence. Commonwealth v. Harwood, 432 Mass. 290, 302 (2000). 

In the instant case, all three factors of the balancing test 

favor the defendant. In light of both the Commonwealth's 

culpability and the fact that the jury were effectively 

foreclosed from drawing any negative inference about the 

destroyed booking video, the remedies that were afforded to the 

defendant were "inadequate to protect the defendant's 

constitutional right to a fair trial." Sasville, 35 Mass. App. 

Ct. at 23.
19

We therefore reverse the order denying the defendant's 

motion for a new trial. The judgment is reversed and the 

verdict is set aside. At any retrial of the defendant, the 

trial judge must instruct the jury on how to address the missing

booking video. As the Supreme Judicial Court has explained, 

"[w]e have not directly addressed the issue of a missing 

evidence instruction. However, '[o]ur courts have fashioned or 

upheld various judicial remedies for the loss of evidence'"

(footnote omitted). Commonwealth v. Kee, 449 Mass 550, 557 

(2007), quoting from Harwood, supra at 302. "In certain cases 

where evidence has been lost or destroyed, it may be appropriate 

to instruct the jury that they may, but need not, draw an 

inference against the Commonwealth." Ibid. This is such a 

case. The instruction "should generally permit, rather than 

require, a negative inference against the Commonwealth." Id. at 

558. The jury should also be instructed that "[i]t may be 

possible to draw more than one inference from the circumstances 

warranting the missing evidence instruction, . . . and choosing 

between competing inferences is the province of the jury." Id.

at 558-559. Both the Commonwealth and the defendant are also 

free to introduce testimony and other evidence regarding the 

reasons why the booking video was not preserved or produced and
20

to argue the reasonable inferences that can be drawn therefrom. 

Compare Cameron, 25 Mass App. Ct at 549.11

Order denying motion for

 new trial reversed.

Judgment reversed.

Verdict set aside.

 

11 As we conclude that the judgment must be reversed, we do

not reach the defendant's claim of ineffective assistance of 

counsel, which he raises for the first time on appeal. We note, 

however, that the courts of the Commonwealth "strongly disfavor 

raising claims of ineffective assistance on direct appeal." 

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).