MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant, Benjamin Josey, was found guilty of armed robbery, G. L. c. 265, § 17; stealing by confining, G. L. c. 265, § 21; and assault and battery on a disabled person, G. L. c. 265, § 13K (a 1/2). On appeal he contends that the trial judge erred in (1) denying his motion for a required finding of not guilty of armed robbery, (2) refusing his request to give a missing witness instruction; and (3) allowing testimony by a police detective who identified the defendant in an automated teller machines (ATM) surveillance video footage (video) and in still photographs.
Discussion 1. Sufficiency. The defendant contends that there was insufficient evidence that he was armed with a dangerous weapon. In reviewing the denial of a motion for a required finding of not guilty, the court considers whether, after viewing the evidence in the light most favorable to the Commonwealth, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Joyner, 467 Mass. 176, 179 (2014), quoting Commonwealth v. Powell, 459 Mass. 572, 579 (2011), cert. denied, 132 S. Ct. 1739 (2012).
Viewed in the light most favorable to the Commonwealth, the evidence was as follows. On August 24, 2017, Rafael Ibañez-Ortiz and his cousin, Juanita Baptiste, were sitting outside their apartment building when the defendant approached them. Ibañez-Ortiz suffers from cerebral palsy, which limits his mobility. Baptiste has an amputated leg and was in a wheelchair. Ibañez-Ortiz had on two earlier occasions gone to an ATM and given the defendant cash after the defendant approached him asking for money.
The defendant again approached Ibañez-Ortiz to ask for money on August 24, 2017, but Ibañez-Ortiz declined. The defendant then sat next to Ibañez-Ortiz and pulled out what Ibañez-Ortiz believed to be a folding blade or folding knife. The defendant said he was “looking to rob someone.” Ibañez-Ortiz then agreed to give the defendant money and withdrew sixty dollars from an ATM.
“In order to commit the crime of armed robbery, the defendant must ‘be[ ] armed with a dangerous weapon’ at the time of the robbery. G. L. c. 265, § 17. Thus, the Commonwealth must prove beyond a reasonable doubt that the defendant had ․ an object that would qualify as a ‘dangerous weapon.’ ” Commonwealth v. Powell, 433 Mass. 399, 401 (2001). See Joyner, 467 Mass. at 187 n.13 (definition of armed robbery pursuant to G. L. c. 265, § 17). “The standard definition of ‘dangerous weapon’ includes those items that are, by their nature, capable of causing serious injury or death, but also includes items that are used or displayed in a way such that they reasonably appear capable of causing serious injury or death.” Powell, supra. See Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). See also Commonwealth v. Prado, 94 Mass. App. Ct. 253, 262 (2018), quoting Powell, supra at 404 (“Where, as here, ‘it reasonably appeared, in all the circumstances, that the object in the defendants possession was capable of inflicting serious bodily injury or death, the jury could conclude that the object was a dangerous weapon and that the robbery was therefore an armed robbery’ ”).
The defendant submits that Ibañez-Ortizs testimony as to the presence of a “folding knife” or “switch blade” was insufficient to conclude beyond a reasonable doubt that the object the defendant displayed was a weapon. However, the crime of armed robbery may be proved by showing that, “at the time of the offense, it would have been reasonable to believe [the object] was capable of inflicting [serious injury or death].” Powell, 433 Mass. at 401. After Ibañez-Ortiz refused to give the defendant money, the defendant sat next to him, looked around in a manner described as furtive, and displayed “the handle of a knife” which could reasonably be inferred lacked a blade because it was a “switch blade” or “folding knife.” The defendant then stated, “Im looking to rob somebody.” The jury could have found either that the object displayed was a knife or that Ibañez-Ortiz reasonably believed it was, and that fearing for his safety and that of his cousin, he turned over the money.
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“The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable ․” Joyner, 467 Mass. at 179-180, quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
2. Missing witness instruction. A judges decision to decline a missing witness instruction is reviewed for abuse of discretion. See Commonwealth v. Williams, 475 Mass. 705, 721 (2016), citing L.L. v. Commonwealth, 470 Mass. 168, 185 n.27 (2014).
“A missing witness instruction is appropriate when a party ‘has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case ․’ ” Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 410 (2019), quoting Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). “Such an instruction should not be given if the testimony of the person would be ‘merely corroborative of, or merely cumulative upon, the testimony of one or more witnesses who have been called, ․ or if the Commonwealth had legitimate tactical reasons for not calling the witness.’ ” Commonwealth v. Andrade, 98 Mass. App. Ct. 395, 400-401 (2020), quoting Saletino, supra at 668.
The trial judge did not abuse his discretion in declining defense counsels request for a missing witness instruction. Neither Ibañez-Ortizs father nor his brother were percipient witnesses. Whatever Ibañez-Ortiz told them was inadmissible multi-level hearsay. See Commonwealth v. Morales, 453 Mass. 40, 52 (2009) (missing witness “would have added nothing of significance to the Commonwealths case”). The Commonwealth had no reason to call them and no adverse inference could properly be drawn against the Commonwealth as a result of the absence of two of the victims family members. See id.
3. Identification. The defendant submits that Detective Thomas Keeley should not have been permitted to testify that the man in the surveillance video was the defendant because the images from the surveillance video were clear and the jury could directly assess whether the person depicted therein was the defendant. The defendant objected to this testimony and we review for prejudicial error. See Commonwealth v. Wardsworth, 482 Mass. 454, 458 (2019). See also Commonwealth v. Pina, 481 Mass. 413, 429-430 (2019).
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“A lay witness is permitted to identify an individual depicted in a video recording or photograph if that testimony would assist the jurors in making their own independent identification.” Pina, 481 Mass. at 429. See Commonwealth v. Vacher, 469 Mass. 425, 441 (2014). In determining whether a witnesss identification of a person appearing in a photograph or video is admissible, we consider a variety of factors, including the quality of the images, the level of familiarity of the witness with the person depicted in the video, and whether the suspect was disguised in the video or has altered his appearance since the time of the crime. See Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325-326 (2000). See also Wardsworth, 482 Mass. at 475; Vacher, supra at 441-442. However, “the testimony of a police officer, with its possibly greater imprint of authority as to identification of a defendant in these circumstances, is not permissible absent some compelling reason that the police officer is in a better position than the jury to identify the defendant.” Pina, supra at 430. See Wardsworth, supra at 476; Vacher, supra at 442.
The judge noted some distortion from the ATM cameras, and stated that some images were grainy. However, most of the ATM video and images are fairly clear. The detective did not know and had not met the defendant, although he had seen his pictures. In these circumstances, we have reservations whether there were compelling reasons to allow the detectives testimony. See Wardsworth, 482 Mass. at 476; Commonwealth v. Yang, 98 Mass. App. Ct. 446, 447-448 (2020). However, “[w]e need not dwell on the issue whether [the detective] was in a better position than the jurors to identify the defendant, and whether the testimony was admitted erroneously. It is clear that [the detectives] identification testimony, even if erroneous, was not prejudicial.” Pina, 481 Mass. at 430. The defendant was known to Ibañez-Ortiz, who identified the defendant as the person in the still photographs and video. In addition, when interviewed by the police, Baptiste picked out a photograph of the defendant, noting that the face was the same but the hair had changed. That photograph was also admitted in evidence. In these circumstances, we discern no prejudice.
Judgments affirmed.
FOOTNOTES
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. To the extent that the defendants argument is premised on a challenge to the credibility of the witness, questions of credibility are solely for the jury. See Commonwealth v. James, 424 Mass. 770, 785 (1997).
3
. The issue was raised in the defendants motion in limine. When the judge ruled that the identification was admissible, the parties (at the judges urging) stipulated to the defendants identity on the video and in the stills. They did so to avoid revealing the detectives basis of knowledge, which was based on his time spent monitoring sex offender compliance with the Sex Offender Registry. We treat the objection as preserved. See Commonwealth v. Grady, 474 Mass. 715, 716-717 (2016). See also Commonwealth v. Almele, 474 Mass. 1017, 1018-1019 (2016).