Baez v. Commonwealth, Record No. 0073-23-3 (Va. Ct. App. Nov. 14, 2023)
The Court of Appeals determines the admissibility of an officer’s body-worn camera footage.
Facts. After a high-speed chase, Tara Ann Baez was pulled over and arrested by Officer Massie and his partner Officer Hubbard for eluding. A female officer, Officer File, arrived at the scene to search Baez. She found a folded-up piece of paper containing cocaine in Baez’s pocket. Though Officer File’s body-worn camera depicted her taking the wrapped drugs from Baez’s pocket, neither Officer Massie nor Officer Hubbard saw her do so.
Officers Massie and Hubbard testified at Baez’s trial, but Officer File did not. Instead, the prosecution relied on her body-cam footage, entered through Officer Massie’s testimony, to establish the chain of custody of the seized drugs. Baez objected to admission of the muted video based on violation of the Confrontation Clause, arguing that Officer File’s actions were hearsay and that the video itself was a testimonial assertion since the footage could be manipulated. She also objected based on a lack of foundation, arguing that Officer Massie could not authenticate any part of the video that he did not personally witness. The trial court disagreed and allowed the prosecution to play the muted video.
A Department of Forensic Science forensic scientist testified to the certificate of analysis that she prepared, which found that the substance from Baez’s pocket was cocaine. Baez objected to the certificate’s admission based on chain of custody, arguing that there was insufficient evidence of Officer File’s initial collection of the evidence. The trial court disagreed again and admitted the certificate.
Based on the evidence, the trial court found Baez guilty of possession of cocaine, and Baez appealed.
Issues. (1) Whether the trial court abused its discretion in admitting Officer File’s body-worn camera footage. (2) Whether the trial court abused its discretion in admitting the certificate of analysis. (3) Whether the evidence was sufficient to prove that Baez possessed a controlled substance.
Holdings. (1) No. The footage (a) did not depict assertive conduct and (b) was admissible to illustrate witness testimony and as an “independent silent witness” of the matters depicted in the video. (2) No. Every vital link in the chain of custody was accounted for. (3) Yes. Any issues involving the chain of custody went to the weight of the evidence, which was properly decided by the finder of fact.
Notes. (1)(a) The Confrontation Clause gives the accused the right to confront any witness against them. To be inadmissible under the Confrontation Clause, testimony “must be both (1) hearsay and (2) testimonial in nature.” Hearsay can come from both verbal and nonverbal assertive conduct since the value of assertive conduct depends on the credibility of the “out-of-court asserter.” And while a video itself cannot be testimonial, conduct or actions depicted within the video can be. Whether the depicted conduct or actions are testimonial is a question of fact. Here, the trial court was within its discretion to find that Officer File’s search of Baez was not assertive conduct and thus not testimonial. It therefore did not violate the Confrontation Clause.
(1)(b) Further, videos may be admitted “either to illustrate a witness’s testimony or to serve as an ‘independent silent witness’ of matters depicted in the video.” Here, Officer Massie’s testimony satisfied the authentication requirements for both theories of admissibility. First, his testimony that he was present at the scene and that the footage accurately depicted the evidence that took place that night was enough to support the trial court’s decision that the video was properly authenticated to illustrate his testimony. There is no caselaw that requires the authenticating witness to create the video or personally observe every detail of the video to authenticate it. Second, Officer Massie testified to how the body-cams work, how videos are created, and that they were uploaded automatically at the end of each day. This evidence showed the accuracy of the process of producing the video. This evidence plus Officer Massie’s testimony that confirmed the accuracy of parts of the video were enough to support the trial court’s decision that the video was properly authenticated for admission as a silent witness.
(2) A chain of custody is established when the evidence provides “reasonable assurance that the exhibits at trial are the same and in the same condition as they were when first obtained.” It is not necessary to exclude every possibility of alteration or tampering, but the evidence must “account for every vital link in the chain of possession.” This is a question of fact. Here, the video, as a silent witness, established that the cocaine found in Baez’s pocket was in the same condition when it was analyzed by at DFS as it was when taken from Baez.
(3) The certificate of analysis, when combined with evidence that Baez was the only person in the car that was pulled over, exhibited abnormal driving behavior, and had drug paraphernalia on her, was sufficient to support the trial court’s decision to convict her of possession of cocaine.