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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 jury 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).
