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SJC-11523

                  COMMONWEALTH   vs.   EDWARD CORLISS.



       Suffolk.       October 29, 2014. - January 20, 2015.

   Present:   Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.


Homicide. Firearms. Robbery. Practice, Criminal, View, Loss
     of evidence by prosecution, Capital case. Evidence,
     Firearm, Jury view, Prior misconduct, Relevancy and
     materiality, Exculpatory, Expert opinion, Experiment.
     Witness, Expert.



     Indictments found and returned in the Superior Court
Department on February 25, 2010.

    The cases were tried before Diane M. Kottmyer, J.


     Stephen Neyman for the defendant.
     Mindy S. Klenoff, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with her) for the
Commonwealth.


    BOTSFORD, J.     A jury convicted the defendant, Edward

Corliss, of murder in the first degree on the theories of

deliberate premeditation and felony-murder, and of unlawful

possession of a firearm, and robbery while armed and masked.

The defendant appeals, claiming (1) the trial judge's
                                                                    2

restrictions on the defendant's attendance at a jury view were

improper; (2) it was error to admit a witness's testimony that

he saw the defendant with a gun more than one year before the

shooting in question occurred; (3) the "destruction" by police

of money seized from the defendant's residence without first

examining the money for fingerprints or deoxyribonucleic acid

(DNA) warrants dismissal of the charges against him; and (4) it

was error to exclude the video and testimony of the defendant's

expert showing that surveillance footage of the shooting

distorted the height of the perpetrator.   Finally, the defendant

asks us to reverse his convictions under G. L. c. 278, § 33E.

We affirm the convictions and decline to grant relief under

G. L. c. 278, § 33E.

    Background.    We recite the facts as the jury could have

found them at trial, reserving some facts for later discussion.

On the afternoon of December 26, 2009, Surendra Dangol, the

victim, was working alone as a clerk at a convenience store

located on Centre Street in the Jamaica Plain neighborhood of

Boston.   At approximately 2:45 P.M., a white motor vehicle

stopped on Eliot Street opposite the store, at the intersection

of Eliot and Centre Streets.   A person wearing a hat and a bulky

coat, and carrying a backpack, approached the vehicle and

appeared to speak briefly with the driver, who had lowered the

window.   The vehicle then backed up on Eliot Street, away from
                                                                        3

the intersection with Centre Street and out of view of the

store's surveillance cameras.

    Minutes later, at approximately 2:56 P.M, a person who

appeared to be the same individual wearing a bulky coat entered

the store, put the backpack on the counter by the register and

pointed a gun at the victim, who stood behind the counter.        The

victim put both hands in the air.     The gunman handed his

backpack to the victim, who opened the cash register and, still

at gun point, transferred the money from the register into the

backpack.   Once the victim finished doing so, the gunman

continued to point the gun at the victim, who stretched both

hands out to either side.     The gunman then shot the victim, and

the victim fell to the ground.     The gunman took his backpack

from the counter and left the store, running down Eliot Street

in the same direction in which the white vehicle had driven in

reverse before the robbery.     Seconds later, the vehicle drove

down Eliot Street toward Centre Street and the store, turned

right onto Centre Street, and drove away.     The store was missing

$746 following the robbery.

    A customer entered the store shortly after the shooting and

heard a gasping noise emanating from behind the counter.      The

customer found the victim lying motionless and telephoned 911.

Boston police officers and paramedics arrived at the scene.         The

victim was transported to a hospital, where he was pronounced
                                                                   4

dead shortly after his arrival.     An autopsy revealed that the

cause of death was a gunshot wound to the victim's chest.

    Police secured the scene and reviewed video recorded by the

store's surveillance cameras.     The police made efforts to

enhance the video of the white vehicle shown on Eliot Street

immediately before and after the robbery and shooting, but were

unable to determine the license plate or any details about the

appearance of the driver.

    The police showed photographs of the white vehicle to an

automobile sales manager and a police officer with experience in

automobile accident investigations, both of whom identified it

as a Plymouth Acclaim made between 1989 and 1995.     Both also

noted that the vehicle in the surveillance video had hubcaps

that were "after-market," i.e., not included with the vehicle

when it was originally manufactured, and the officer noted that

the brake light in the vehicle's rear window appeared not to be

functioning properly.

    The police obtained from the registry of motor vehicles a

list of white Plymouth Acclaims registered in Massachusetts that

were made between 1989 and 1995.     One such vehicle was

registered to Jacqueline L. Silvia, the defendant's wife, who

lived with the defendant on Hyde Park Avenue in the Roslindale

section of Boston.   The police conducted surveillance of the

white Acclaim in the weeks following the shooting and, in early
                                                                    5

January of 2010, observed Silvia driving it with the defendant

in the passenger seat.

    On January 15, 2010, police sought and obtained a search

warrant for Silvia's Acclaim.   Upon examining the vehicle at the

police station, the police observed that, similar to the white

vehicle in the surveillance video, the Acclaim had after-market

hubcaps, and the brake light in the rear window was close to

burning out and, thus, producing less light than intended.

    The defendant also admitted to three different people that

he had committed a robbery and had shot someone at the store.

In particular, on the night of the incident, while the defendant

was visiting his brother, he pulled dollar bills of various

denominations out of his pocket and told his brother that he had

"pulled a score" during which he killed a man in the store who

had lied to him by saying that there was no money in the

register; he also stated that he had no remorse about the

incident.   Later, while being held in custody before trial, the

defendant told a fellow inmate that he entered a store intending

to rob it; that he shot a man inside the store (to whom the

defendant referred as a "sand nigger"); that the vehicle used in

the offense was his wife's Plymouth; and that he disposed of the

gun used in the shooting along Revere Beach.   The defendant told

another inmate that he robbed the store while wearing a wig and

a puffy outfit, and shot the store clerk; he killed the clerk,
                                                                       6

he explained, to ensure that there would be no witnesses to the

robbery.       The defendant added that he had disposed of the gun

used in the shooting in the water.       In addition, fearing

Silvia's possible testimony against him in court, the defendant

asked the inmate to kill Silvia upon the inmate's release from

prison, and gave him details of Silvia's whereabouts and

routines to facilitate her killing.1

       Based on information they had received during the course of

their investigation, the police searched a rocky portion of

Revere Beach several times.       During their third search police

found a handgun in the sand.       Ballistics testing confirmed that

the bullet removed from the victim's body was fired from this

gun.       The Commonwealth also presented evidence that the

defendant had told his brother that he often carried a gun for

protection that he referred to as his "buddy."       Finally, there

was evidence that, prior to the robbery of the store, the

defendant had told his brother in December of 2009 that he was

experiencing financial trouble due to a decrease in his Social

Security benefits.2




       1
       The defendant also asked the inmate to kill a neighbor and
a friend of the defendant, both of whom the defendant believed
had provided testimony against him.
       2
       The defendant also told his parole officer that his Social
Security payments decreased in early December of 2009 despite an
increase in his rent obligation.
                                                                       7

    Discussion.     1.   Jury view.   The defendant argues that the

trial judge erred in denying his request to attend a view that

would be separate from, but identical to, the view taken by the

jury.    Acknowledging that the judge did allow him to attend the

jury view, the defendant further claims that the judge erred in

confining him to a vehicle during the view.      Finally, the

defendant relies on Commonwealth v. Morganti, 455 Mass. 388, 403

n.9 (2009), S.C., 467 Mass. 96 (2014), to argue that his

presence was required throughout the jury's view because, he

claims, the view involved an experiment or demonstration, and in

any event, the view could have been avoided.      There was no

error.

    The background facts are the following.       The Commonwealth's

pretrial motion for a view by the jury was allowed without

objection.    Prior to the view, the defendant wavered as to

whether he wished to be present for the jury's view or to attend

a separate view, but ultimately indicated a preference for the

latter.    The judge stated that under existing case law, the

defendant had no constitutional right to be present during the

view.    Furthermore, the judge noted that there was some

information available indicating that the defendant had plotted

to escape from custody and had spoken about killing prison

guards, and that this evidence dictated the need for security

personnel to accompany the defendant on any separate view.       The
                                                                    8

judge was skeptical about the feasibility of conducting a

separate view for the defendant, given the shortage of security

personnel available, but indicated that she would look into

whether a private view for the defendant was practicable.     The

judge thereafter did not mention the issue of a separate view,

but ultimately ruled, based on security concerns, that the

defendant could not be present with the jury during their view,

but that security personnel would transport the defendant in a

separate vehicle and the vehicle would be positioned to allow

the defendant to observe each location on the jury view to the

extent possible.   The judge prohibited the defendant from

leaving the vehicle during the view, but provided him with a

"notice of view details," drafted by the Commonwealth, which

described "precisely what it is that the Commonwealth [pointed]

out to the jurors."

    The jury went on the planned view, during which counsel for

the Commonwealth and for the defendant showed jurors the area

surrounding the store, the interior of the store, the exterior

of the defendant's residence, Sylvia's white Acclaim, a rock

jetty along Revere Beach, and the exterior of a business

establishment in Revere.   The defendant was unable to view the

interior of the store, but the judge noted her expectation that

the Commonwealth would introduce depictions of relevant aspects

of the store at trial.
                                                                   9

    "'We have held repeatedly that a defendant does not have a

right to be present during a jury view' under either the Sixth

or the Fourteenth Amendment to the United States Constitution or

art. 12 of the Massachusetts Declaration of Rights."   Morganti,

455 Mass. at 402-403, quoting Commonwealth v. Gordon, 422 Mass.

816, 849 (1996).   This is so because a "view is not part of the

trial," Commonwealth v. Gomes, 459 Mass. 194, 199 (2011), due to

the fact that, "[a]lthough what is seen on the view may be used

by the jury in reaching their verdict, in a 'strict and narrow

sense a view may be thought not to be evidence.'"   Id., quoting

Commonwealth v. Curry, 368 Mass. 195, 198 (1975).   See Berlandi

v. Commonwealth, 314 Mass. 424, 451 (1943); Commonwealth v.

Snyder, 282 Mass. 401, 412-413 (1933), aff'd, 291 U.S. 97

(1934).   Accordingly, it was not required that the defendant

observe what the jury saw on their view, either during the view

itself or on a separate occasion.   Rather, a trial judge has

discretion whether to permit a defendant to be present at a jury

view, "may consider issues of security in deciding whether to

permit a defendant to be present," as the judge did here, and

"may impose reasonable conditions or restrictions" on a

defendant attending such a view.    See Commonwealth v. Evans, 438

Mass. 142, 151 (2002), cert. denied, 538 U.S. 966 (2003).     Given

the security risk posed by the defendant, the judge's decision

to confine him to a police vehicle during the jury view was
                                                                   10

reasonable and well within her discretion.    See Commonwealth v.

Mack, 423 Mass. 288, 291 (1996) (affirming trial judge's

decision that defendant could attend jury view only if he

remained "in a police car and some distance away from the

jury").3

     2.    Admission of evidence that the defendant possessed a

firearm.    The defendant challenges the trial judge's decision to

allow a witness, Robert Dauteuil, to testify that sixteen months

before the store robbery and shooting, he saw the defendant with

a firearm that the defendant proceeded to load with bullets.      We

disagree.

     The pertinent background facts are these.   Before trial,

the Commonwealth filed a motion to permit Dauteuil, a friend of

     3
       The defendant's reliance on Commonwealth v. Morganti, 455
Mass. 388, 403 n.9 (2009), S.C., 467 Mass. 96 (2014), is
misplaced. That footnote states, "Because no demonstration was
performed during the view and the automobile [that was a subject
of the jury view] plainly could not be brought into the court
room, we need not consider whether the defendant's presence
would be required if there had been a demonstration or if the
view could have been avoided." This statement concerned the
specific facts of the Morganti case, where the automobile the
jury were viewing featured, in the front passenger seat, a
mannequin that had a rod through its head to demonstrate "the
path of travel of the bullet that killed the victim." Morganti,
supra at 402. There were no such unusual features of the jury
view in this case -- it was, as the judge remarked, a "classic
view," in which counsel for the Commonwealth and the defendant
pointed out particular locations and features to the jury
without comment. The Morganti footnote should not be understood
to suggest that whenever the defendant does not accompany the
jury on a view, the trial judge is obligated to make a specific
determination whether the view could have been avoided by
introduction of evidence that would provide the same
illustrative information.
                                                                     11

the defendant, to testify as just described.     The Commonwealth

sought to admit this testimony, in part, because, in the

Commonwealth's view, it would allow the jury to infer that the

gun seen by Dauteuil was the murder weapon.     The judge noted the

relevance of evidence showing a defendant "to have knowledge of

and the ability to use firearms," and allowed the Commonwealth's

motion, concluding the probative value of Dauteuil's proposed

testimony outweighed its prejudicial effect.

     Dauteuil testified at trial that he saw the defendant

holding a handgun and putting bullets into the clip of the gun

at the defendant's home in August of 2008.     He stated that the

gun was black and that the bullets, of which there were between

six and eight, were silver and "a little bigger" than a .22

caliber bullet.4   Dauteuil conceded that he was "not familiar

with guns," but stated that he was sufficiently familiar with

them to recognize the size of the bullets.     Upon being shown a

photograph of the gun retrieved from Revere Beach, Dauteuil

stated that the gun the defendant had in 2008 was similar in

size and shape to the gun in the photograph, but he stopped

short of saying that the two guns were the same.     The defendant

objected.




     4
       Later, the Commonwealth introduced evidence that the
murder weapon took bullets that were larger than .22 caliber
bullets.
                                                                    12

    At the time Dauteuil testified about the gun, the judge

instructed the jury that they were precluded from considering

the testimony as evidence that the defendant committed a crime

by possessing a firearm in August of 2008, or from considering

the testimony as evidence of the defendant's bad character or

propensity to commit crimes.     She stated that they could

consider Dauteuil's testimony, if they deemed it credible, only

to determine whether the defendant had access to a firearm and

knowledge of how to operate a firearm at the time of the

shooting in the store.     The judge repeated these instructions

during her final charge.

    "It is well settled that the prosecution may not introduce

evidence that a defendant previously has misbehaved, indictably

or not, for the purposes of showing his bad character or

propensity to commit the crime charged, but such evidence may be

admissible if relevant for some other purpose."     Commonwealth v.

Helfant, 398 Mass. 214, 224 (1986), and cases cited.     As the

trial judge recognized, one such purpose is "to show that the

defendant has the means to commit the crime."     Commonwealth v.

Ridge, 455 Mass. 307, 322 (2009).    "The judge, within sound

discretion, must consider whether the probative value of such

evidence is outweighed by potential prejudice," Commonwealth v.

Gollman, 436 Mass. 111, 114 (2002), and the judge's

determination is "not disturbed absent palpable error."
                                                                   13

Commonwealth v. McGee, 467 Mass. 141, 156 (2014), quoting

Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).   See

Commonwealth v. Ashman, 430 Mass. 736, 744 (2000) (admission of

"[e]vidence that a defendant possessed a weapon that could have

been used to commit a crime" to show that defendant had means to

commit crime is left to discretion of trial judge whose decision

will be accepted on review except for palpable error).

    We discern no error in the admission of Dauteuil's

observations of the defendant's possession of a gun, even though

they occurred more than one year before the shooting at the

store.   The testimony was relevant to show that the defendant

had the means to perpetrate the crime.   See McGee, 467 Mass. at

156-157.   See also Ridge, 455 Mass. at 322-323 (no error in

admitting "evidence of the defendant's access to, and knowledge

of, firearms and bullets" where trial judge "instructed the jury

that the evidence was only to show that the defendant had some

familiarity with firearms and not that he was a bad person").

    As for the sixteen-month interval between Dauteuil's

observations and the shooting, "[p]roximity to the crime in

point of time is an element to be considered in viewing the

probative value of testimony, and it is a factor which should be

left largely to the discretion of the judge," Commonwealth v.

Watkins, 375 Mass. 472, 491 (1978), quoting Commonwealth v.

Russell, 2 Mass. App. Ct. 293, 295 (1974), although it must "not
                                                                     14

be too remote in time."     Commonwealth v. Butler, 445 Mass. 568,

574 (2005), quoting Commonwealth v. Barrett, 418 Mass. 788, 794

(1994).   Here, in exercising her discretion to admit the

testimony, the judge indicated that the temporal remoteness of

Dauteuil's observations did not preclude their admission because

once the defendant knew how to operate a gun, he would retain

such knowledge over time.    Moreover, as stated, the judge

instructed the jury twice that they could use this testimony

only to determine whether the defendant had access to a firearm

and knowledge of how to operate a firearm, and that they could

decide "what weight, if any" to give to Dauteuil's testimony.

Cf. Helfant, 398 Mass. at 226-227, 228 n.13 (evidence of

defendant's prior misbehavior admitted on issue of defendant's

intent and state of mind; where such evidence is relevant, jury

may consider time interval between such incidents as bearing on

weight to be given such evidence).    See Commonwealth v.

McLaughlin, 352 Mass. 218, 221, 229-230, cert. denied, 389 U.S.

916 (1967) (no error in admitting guns found in possession of

defendant approximately one year after murder for which he was

indicted).

    The defendant argues that in addition to the question of

remoteness, Dauteuil's testimony, in conjunction with later

testimony by a police ballistician that the murder weapon took

bullets larger than .22 caliber bullets, created significant
                                                                  15

prejudice because it improperly linked the gun observed by

Dauteuil with the murder weapon.5   However, "evidence of '[a]

weapon that could have been used in the course of a crime is

admissible'" to show that the defendant had the means to commit

the crimes alleged, "even without direct proof that the

particular weapon was in fact used in the commission of the

crime" (internal quotations omitted).    McGee, 467 Mass. at 156,

quoting Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012).      See

McGee, supra at 156-157 (witness's testimony concerning gun seen

in defendant's possession prior to shooting was admissible where

witness's description of gun was consistent with other testimony

indicating nature of murder weapon, and probative value of

testimony outweighed its prejudicial effect; it was for jury to

determine "any link between the gun [defendant] was said to

possess and the one used to shoot the victim").   See also

Ashman, 430 Mass. at 744.   Moreover, the judge's limiting

instructions permitted the jury to use Dauteuil's testimony only


     5
       Dauteuil's testimony that the gun the defendant possessed
in 2008 took bullets larger than .22 caliber bullets is
consistent with the ballistician's description of the gun used
in the shooting.

     The defendant argues that there was no foundation for
Dauteuil's testimony about the size of the bullets he saw in the
defendant's possession. This argument appears to relate to the
witness's statement on cross-examination that he was "not
familiar with guns." A witness, however, need not have
familiarity with firearms to testify about details of a gun seen
in the possession of the defendant on an earlier occasion. See
Commonwealth v. Watkins, 375 Mass. 472, 491 (1978).
                                                                   16

to determine whether the defendant had access to a firearm and

knowledge of how to operate a firearm, despite the

Commonwealth's contention that the testimony was admissible to

show that the gun Dauteuil observed was, in fact, the murder

weapon.   We presume the jury followed these instructions, and

thus the defendant received the benefit of limits greater than

those to which he was entitled.   See Commonwealth v. Auclair,

444 Mass. 348, 358 (2005).   His argument of prejudice fails.

    3.    Destruction of money seized from the defendant's

residence.   The defendant argues that the failure of the police

to retain and segregate the money seized from his residence

precluded him from establishing that the victim's fingerprints

or DNA were not on this money and, thus, denied him a fair

trial, requiring dismissal of the charges against him.

    Testimony at trial revealed that, based on information

gathered during the course of their investigation, police sought

and obtained a search warrant to search the defendant's

apartment.   During the search, the police seized $320 -- two

fifty-dollar bills and eleven twenty-dollar bills -- that were

on top of the kitchen table in the apartment.   The defendant and

the Commonwealth stipulated that this money had been in Silvia's

possession immediately prior to being placed on the table.      The

inference the Commonwealth sought to have the jury draw was that

these bills were some of the proceeds of the robbery.
                                                                     17

    Sergeant Detective Michael Devane of the Boston police

department testified at trial that it is police policy to

document seized money and then either to hold it as evidence or

submit the money to the department's cashier's office for

deposit into a bank account.   Upon seizing the bills from the

defendant's apartment, the police photographed the money and

recorded the serial numbers of each bill, but did not test any

of the money for fingerprints or DNA.     Ultimately, according to

Devane, the seized money was deposited in a bank account

consistent with police department policy.     Cross-examination of

Devane elicited that the police did not retain and segregate the

seized bills as evidence because the police decided that the

physical form of the bills did not have evidentiary value.

    Before trial, the defendant moved to exclude any evidence

concerning the seized bills as a sanction against the

Commonwealth for "destroying" the money.    The judge denied the

motion and allowed the Commonwealth to introduce the evidence,

concluding that there was no "showing that the Commonwealth

acted deliberately or in bad faith."    The judge also noted that

it was speculative to suggest that the seized bills would have

yielded something of evidentiary value.

    "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
                                                                    18

evidence rather than a fertile imagination, that access to the

[evidence] would have produced evidence favorable to his cause"

(citations and quotations omitted).     Commonwealth v. Cintron,

438 Mass. 779, 784 (2003).    See Commonwealth v. Neal, 392 Mass.

1, 12 (1984).   In other words, "the defendant must establish a

reasonable possibility that the lost or destroyed evidence was

in fact exculpatory."   Commonwealth v. Kee, 449 Mass. 550, 554

(2007).   If the defendant does not satisfy this initial burden,

"there is no need to engage in [a] balancing test," Commonwealth

v. Williams, 455 Mass. 706, 718 (2010), weighing "the

Commonwealth's culpability, the materiality of the evidence, and

the prejudice to the defendant in order to determine whether the

defendant is entitled to relief."     Id.

    The defendant's argument fails.     Assuming that testing the

bills in question yielded no evidence of the victim's

fingerprints or DNA, the exculpatory value of such a result

appears to be slim to none.   The victim may well not have

touched every bill of the approximately $750 stolen in the

robbery -- the surveillance video of the actual robbery makes it

clear that the victim transferred the money in the cash drawer

by hurriedly lifting groups or wads of bills together and

stuffing them into the robber's backpack -- and therefore the

absence of the victim's fingerprints or DNA on the seized bills

would not indicate that the bills were not the proceeds of the
                                                                  19

robbery.   Moreover, the evidence is undisputed that the

defendant's wife had held and handled the money in question

after the robbery, creating the real possibility that any

fingerprints or DNA that might have been on the bills before

would not be identifiable.    See Commonwealth v. Walker, 14 Mass.

App. Ct. 544, 548-549 (1982) ("absence of the defendant's

fingerprints on the [destroyed evidence] would not have proved

his innocence" because "any fingerprints may have been destroyed

by the handling of others" before police obtained evidence).6

     Because the defendant has failed to satisfy his initial

burden of establishing "a reasonable possibility" that "access

to the [seized money] would have produced evidence favorable to

his cause," we need not balance the Commonwealth's culpability,

the evidence's materiality and the prejudice to the defendant.

See Commonwealth v. Clemente, 452 Mass. 295, 309 (2008), cert.

denied, 555 U.S. 1181 (2009), quoting Kee, 449 Mass. at 554.

See also Williams, 455 Mass. at 718.   The judge did not abuse

her discretion in allowing the admission of evidence concerning

the seized money.

     4.    Exclusion of images produced by the defendant's expert

witness.   The defendant argues that the judge's exclusion of a


     6
       Moreover, it goes without saying that bills held in the
cash register of a convenience store are likely to have been
handled by a variety of individuals in addition to the
convenience store clerk, including the customers who transferred
the bills in exchange for the goods they purchased.
                                                                   20

video that consisted of three images created by his expert

witness, Michael Garneau, and of Garneau's testimony regarding

the video, was reversible error because it infringed upon his

right to present a defense.   To create the images, the

defendant's expert had superimposed a height chart on top of

three different images of the perpetrator captured by the

store's surveillance cameras during the robbery.     The purpose --

at least as suggested by defense counsel in a voir dire of the

expert held before he testified at trial -- was to show that the

surveillance video footage distorted the perpetrator's height.7

     Before she ruled on the admissibility of the superimposed

video images, the judge conducted a voir dire hearing of Garneau

to determine the method by which he had created the images and

his proposed testimony.8   Garneau testified that he had extracted

three still images depicting the perpetrator in the store during

the robbery from the store's surveillance footage.    In August,

     7
       In his opening statement, defense counsel had suggested to
the jury that they would hear from the expert, Michael Garneau,
that the perpetrator of the robbery was five feet eleven inches,
whereas the defendant was only five feet five inches. At the
time of the voir dire examination of Garneau, however, defense
counsel argued that the reason Garneau's testimony was important
was not to indicate the perpetrator was any particular height.
Rather, the reason counsel advanced was that one could not make
an accurate estimate of the perpetrator's height from the video
footage because the placement of the surveillance camera on the
ceiling and the angle of its focus meant that the appearance of
the perpetrator's height was distorted and changed depending on
where the perpetrator was standing in relation to the camera at
any given point in time.
     8
       Garneau's qualifications as a video editing expert were
not disputed and were not at issue during the voir dire.
                                                                  21

2011, he went to the store and, with the help of the store's

owner, adjusted the focus of one of the surveillance cameras

mounted to the ceiling of the store to replicate as closely as

possible the angle of the still images.   He then filmed a height

chart attached to a metal stand that he had positioned in the

"general area" of the three spaces occupied by the perpetrator

of the robbery in the three 2009 surveillance images.

Thereafter, with the help of a video compositing program, he

laid the video of the height chart on top of the three original

surveillance images of the perpetrator.   The resulting video

superimposed the lines of the height chart on the perpetrator as

depicted in the original surveillance images, with each line

representing one inch in height.   In two of the superimposed

surveillance images, the perpetrator appeared to measure five

feet five inches on the height chart, and the third image showed

the perpetrator's height to measure five feet nine inches.

During his voir dire testimony, Garneau acknowledged that the

interior of the store had changed in the interval between the

2009 robbery and August, 2011, and he could not say whether the

store's ceiling had been renovated.   The store's video

surveillance system had changed in that period as well.

    Over the defendant's objection, the judge excluded the

video of the perpetrator with the superimposed height chart on

the grounds that it would not be helpful to the jury.     She
                                                                    22

appeared to believe (perhaps based on the defense counsel's

opening) that the defendant sought to use the superimposed

images to argue that the perpetrator was a particular height,

and she opined that the expert's testimony would be misleading

on that point.     She also indicated that there was insufficient

foundation that the height chart was placed on a floor that was

on the same level as the floor during the robbery, and noted

that there had been "a change in the ceiling [at the store] with

respect to the camera."

     The judge, however, did allow admission of Garneau's video

showing only the height chart, without any image of the

perpetrator.9    Furthermore, the judge allowed Garneau to testify

to the distorting effect of camera angles and to the "fallacy of

using a fixed object like the bolt [on the doorframe of the

store visible in the surveillance footage, see note 9, supra] to

determine height" in light of the angle of the camera.

Thereafter, the defendant called Garneau as a witness at trial,

and his testimony covered both of these points.

         "The permission to perform or make experiments or

illustrations in the presence of the jury rest[s] in the sound

judicial discretion of the trial judge."     Commonwealth v. Chin

     9
       In admitting this video, the judge reasoned that the
height chart provided a measurement of distance from the floor
of the store as it existed just prior to trial and, given that
the Commonwealth had introduced into evidence a measurement from
that same floor to a bolt on the store's doorframe, fairness
required the admission of the height chart video.
                                                                  23

Kee, 283 Mass. 248, 260 (1933), and cases cited.   See

Commonwealth v. Makarewicz, 333 Mass. 575, 592 (1956).

"Although it must appear that the conditions or circumstances

were in general the same in the illustrative case and the case

in hand, . . . the determination whether the conditions were

sufficiently similar to make the experiments of any value in

aiding the jury is a matter resting in the sound discretion of

the judge" (citation omitted).   Id. at 592-593, quoting Guinan

v. Famous Players-Lasky Corp., 267 Mass. 501, 521-522 (1929).

See Commonwealth v. Flynn, 362 Mass. 455, 473 (1972), quoting

Field v. Gowdy, 199 Mass. 568, 574 (1908) (trial judge has

discretion to determine "[w]hether the conditions were

sufficiently similar to make the . . . [experiment or

demonstration] of any value in aiding the jury to pass upon the

issue submitted to them").   A judge's decision concerning the

similarity of the experiment's conditions to those of the

original incident "will not be interfered with unless plainly

wrong."   Flynn, supra, quoting Field, supra.

    Evidence at trial supported the judge's finding that there

was an insufficient showing that the floor level and

surveillance camera positioning at the store were the same

during Garneau's videotaping and the robbery.   Although it would

not have been an abuse of discretion for the judge to have

permitted the introduction of the superimposed video and
                                                                   24

accompanying explanation by the expert, we cannot say it was an

abuse to exclude it.10   More importantly, even assuming for

argument that the exclusion constituted error, it was not

prejudicial because Garneau was permitted to, and did, testify

concerning the purpose of the height chart and to the

substantive points that the video was intended to illustrate:

the inaccuracy of using an elevated camera angle to judge the

height of something in relation to the height of a fixed object,

and a camera angle's distorting effect on the images the camera

captures.   See Commonwealth v. Smith, 460 Mass. 385, 398 (2011)

(exclusion of evidence did not prejudice defendant where it was

cumulative of admitted evidence).   These concepts were not of

such complexity that the excluded video was needed to elucidate

Garneau's testimony for the jury.   Moreover, in his closing, the

prosecutor did not seek to argue that the surveillance video

demonstrated that the perpetrator's height corresponded to that



     10
       The defendant cites several cases to support his argument
that any differences between the conditions of an experiment and
the conditions of the original incident "affect the weight of
the [experiment] evidence and not its admissibility." See
Calvanese v. W.W. Babcock Co., 10 Mass. App. Ct. 726, 730-731
(1980); Bechtel v. Paul Clark, Inc., 10 Mass. App. Ct. 685, 688-
689 (1980). See also Commonwealth v. Ellis, 373 Mass. 1, 5
(1977). In each of these cases, however, the trial judge had
exercised discretion to allow evidence of an experiment.
Accordingly, the defendant's argument does not alter the legal
landscape that affords a trial judge discretion to exclude
evidence of an experiment due to the different conditions
present during the experiment. See Commonwealth v. Flynn, 362
Mass. 455, 473 (1972).
                                                                  25

of the defendant.   The judge's exclusion of the expert's video

did not infringe on the defendant's right to present a defense.

    5.   G. L. c. 278, § 33E.   After review of the entire record

pursuant to G. L. c. 278, § 33E, we find no basis on which to

grant the defendant relief.

                                    Judgments affirmed.
