Commonwealth v. Housewright , 470 Mass. 665 ( 2015 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11617
COMMONWEALTH vs. LARRY HOUSEWRIGHT.
Bristol. October 7, 2014. - February 19, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Intimidation of Witness. Firearms. Assault by Means of a
Dangerous Weapon. Evidence, Testimony at prior proceeding,
Previous testimony of unavailable witness, Unavailable
witness, Photograph, Firearm. Witness, Intimidation,
Unavailability. Constitutional Law, Confrontation of
witnesses. Practice, Criminal, Confrontation of witnesses.
Complaint received and sworn to in the New Bedford Division
of the District Court Department on May 17, 2010.
After transfer to the Fall River Division of the District
Court Department, the case was tried before Kevin J. Finnerty,
J.
The Supreme Judicial Court granted an application for
direct appellate review.
Benjamin Evans, Committee for Public Counsel Services, for
the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
2
GANTS, C.J. On May 11, 2010, the defendant, Larry
Housewright, pointed a weapon at a second-story window where a
witness in his friend's criminal case was standing, and fired as
the truck in which he was a passenger drove away. A District
Court jury convicted the defendant of intimidating a witness,
carrying a firearm without a license, discharging a firearm
within 500 feet of a building, and assault by means of a
dangerous weapon. On appeal, the defendant claims that (1) the
judge abused his discretion in allowing the Commonwealth to
present a witness's prior recorded testimony without sufficient
proof of the witness's unavailability; (2) the judge abused his
discretion in admitting two photographs of a handgun that looked
like the unrecovered handgun fired by the defendant; and (3) the
judge erred in denying the defendant's motion for a required
finding of not guilty because the evidence was insufficient to
support the conviction of unlawful carrying of a firearm, where
no reasonable jury could find beyond a reasonable doubt that the
defendant's handgun was capable of discharging a bullet.
Although we find no error in the admission of the
photographs or in the denial of the motion for a required
finding of not guilty, we conclude that the judge abused his
discretion in determining that the Commonwealth's witness was
unavailable to testify based solely on a doctor's four-sentence
letter that listed her medical conditions and opined that the
3
stress of testifying in court "might" be detrimental to the
witness's health. Because the admission of the witness's prior
recorded testimony without an adequate showing of the witness's
unavailability violated the defendant's constitutional right to
confront the witness, and because the error was not harmless
beyond a reasonable doubt, we vacate the convictions and remand
for a new trial.
Background. We briefly describe the evidence at trial,
reserving discussion of the evidence that is relevant to the
issues raised on appeal.
In 2010, Doris Williams owned a two-family house in New
Bedford, and lived in the first-floor apartment; Kim Sivertsen
and Aaron Tobia lived together on the second floor. In February
of that year, Williams's grandson, Matthew Borges,1 was charged
with breaking and entering the second-floor apartment. On May
5, Sivertsen and Tobia attended a pretrial conference in the
case against Matthew, during which Matthew made threatening
gestures aimed at them, such as drawing his finger across his
neck, pointing his finger in the form of a gun, and hitting his
fist against his other hand. When Sivertsen left the court
house, she saw a white truck with distinctive features pull up
in front of the court house and pick up Matthew and his brother,
1
Because Matthew Borges and various witnesses share the
same surname, we will refer to them by their first names.
4
Joshua Borges. Because the truck's windows were tinted, she
could not see the faces of any other people in the truck.
On May 11, Sivertsen was returning to her apartment at
approximately 3:15 P.M. when she saw the same white truck from
the court house parked on the street outside her apartment, with
a woman in the driver's seat and two passengers. Sivertsen
knocked on Williams's front door to ask if she was expecting
anyone. Williams, whose prior recorded testimony was presented
at trial, stated that when she opened the door, she saw the
defendant open the passenger side door and say, "Hi Grandma."
Williams had known the defendant since he was a child; her
grandson, Matthew, and the defendant were childhood friends, and
the defendant always called her "Grandma." She asked the
defendant what he was doing in the neighborhood, and he
responded, "I'm waiting for someone."
Sivertsen testified that the defendant shouted that he was
the one that picked up Matthew from the court house and that he
was there to pick up "Mikey."2 The defendant then told
Sivertsen, "Tell your boyfriend I have something for him," and
pulled out a small, silver gun and showed it to her. After
Sivertsen said she was going to call 911, the truck began moving
away, but as it was leaving, the defendant pointed the gun out
of the passenger's side window and fired it at the second-floor
2
One of Doris Williams's grandchildren was named Michael.
5
window where Tobia was standing. Williams had already reentered
her home, and "didn't see anything" related to the shooting.3
The police were unable to locate any shell casings, bullets,
bullet holes, or other property damage.
Williams's son, Stephen Borges, who was Matthew's uncle,
was in the cellar of Williams's apartment at the time of the
incident. From the cellar, he heard "a gunfire go off," which
caused him to run outside. He saw the white truck leave and
recognized someone who "hung around with Matthew." He got into
his own vehicle and followed the white truck until it parked,
where he saw Matthew and the defendant get out. A day or two
after the incident, Stephen returned to the area where the white
truck parked and saw it again. He recorded the license plate
number and later gave that number, the name of the defendant,
and the location of the white truck to Williams.
On May 12, Sivertsen provided Detective William Sauvé with
a physical description of the assailant, which he used to
assemble a six-photograph sequential array that included the
defendant. When Sivertsen viewed the array, she did not
identify the defendant and said she was eighty per cent certain
3
Williams initially testified at the prior recorded
hearing, "He only fired once. And he aimed for the second
floor." But she then clarified that she did not actually see
the shot. She only "heard it." It was Aaron Tobia who told her
that the sound was gunfire and that "the guy pointed [the gun]
up to the window."
6
that one of the other photographs depicted the perpetrator.4
Tobia viewed the same set of photographs and, despite stating he
was ninety per cent confident, chose not to make an
identification.5
A couple days later, Williams went to the police station
with her daughter, Laurie Borges, to view the photographic
array.6 They viewed the array together, and Williams picked a
photograph of the defendant, saying it looked like the
assailant, but she was not positive because the person in the
photograph had a beard, but she remembered the defendant best
without facial hair. Detective Sauvé then printed an older
photograph of the defendant, where he did not have facial hair,
and displayed it to Williams and Laurie, who both said that it
showed the defendant.
4
At trial, when showed the photographic array again (in
simultaneous form), Kim Sivertsen could not identify which
photograph she originally thought showed the perpetrator, but
she identified the defendant in court as the man in the
passenger seat and stated that she was one hundred per cent
confident in her identification. She explained that the
defendant's large stature is his most identifying feature, which
is not well depicted in a photograph.
5
At trial, Tobia identified the defendant in-court and
explained that he had been unable to be fully confident in
making an identification without seeing the person in front of
him, as photographs only show the face, and the perpetrator was
a big person.
6
Laurie Borges was not an eyewitness to the events on May
11, 2010.
7
While meeting with Detective Sauvé, Williams also provided
the information that she received from her son, Stephen: the
white truck's license plate number, the defendant's name, and
the location where her son found the white truck. Detective
Sauvé found the white truck at the location, obtained an arrest
warrant, and arrested the defendant. At the time of the arrest,
the defendant was living with his girlfriend, Melissa Gomes, at
the address where both Stephen and Detective Sauvé had observed
the truck.
At trial, the defendant, through the testimony of his
cousin, Eliot Spooner, presented an alibi that he was being
driven to St. Luke's Hospital when the shooting occurred.
Spooner testified that the defendant and he were working at a
farm in Rochester on May 11, and at approximately 2:45 P.M.,
Spooner injured his finger while splitting wood. Spooner and
the defendant called Gomes, who picked them up at around 3:15
P.M. to drive them to the hospital. They arrived at the
hospital at approximately 3:50 P.M. At the hospital, the
defendant stayed with Spooner for at least one-half hour to one
hour while Spooner waited to see the doctor.
Discussion. 1. Prior recorded testimony. On the first
day of trial, the Commonwealth filed a motion in limine to admit
Williams's prior testimony from the defendant's pretrial
detention hearing, conducted pursuant to G. L. c. 276, § 58A, on
8
May 21 and 24, 2010. The Commonwealth argued that Williams was
unavailable due to illness and that her testimony fell within
the hearsay exception for prior recorded testimony of an
unavailable declarant. See Mass. G. Evid. § 804(b)(1) (2014)
(hearsay exception, if declarant is unavailable, for testimony
given at another trial or hearing, where party against whom
testimony is offered had opportunity and similar motive to
develop testimony by direct, cross-, or redirect examination).
a. Unavailability due to illness or infirmity. To show
that Williams was unavailable to testify at trial, the
Commonwealth relied on her returned summons, which noted that
she would not be able to attend the trial because she was "under
doctor's care," and on a letter from her doctor, which declared:
"Doris Williams is a 74 year old patient under my care for:
cardiomyopathy, coronary artery disease, peripheral
vascular disease, arthritis and angina. It is my medical
opinion that the stress of testifying in court might be
detrimental to her health. I urge you to exclude her from
your witness list."
The letter also provided the doctor's office telephone number
"[i]f you require additional information."
The defendant objected to the admission of Williams's prior
testimony on various grounds, including the insufficiency of the
doctor's letter to establish unavailability. The judge
overruled the objection and allowed the motion to admit
Williams's prior recorded testimony, noting that "if she's under
9
a physical infirmity that puts her health at risk for
testifying, I think that would be a sufficient basis to find her
unavailable."
On appeal, the defendant argues that the admission of
Williams's prior testimony violated his right to confront the
witness under the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights.7 We address initially the defendant's claim that the
Commonwealth did not sufficiently prove that the witness was
unavailable.8
"In [Crawford v. Washington, 541 U.S. 36, 57-59 (2004)],
the United States Supreme Court held that testimonial out-of-
court statements made by a declarant who is not a witness at
trial are inadmissible under the confrontation clause of the
Sixth Amendment, unless the declarant is unavailable to testify
7
The defendant does not argue that the right of
confrontation under art. 12 of the Massachusetts Declaration of
Rights affords greater protection than the Sixth Amendment of
the United States Constitution, so we do not discuss these
provisions separately. See Commonwealth v. Arrington, 455 Mass.
437, 440 n.4 (2009), quoting Commonwealth v. DeOliveira, 447
Mass. 56, 57 n.1 (2006) ("Although art. 12 has been interpreted
to provide a criminal defendant more protection than the Sixth
Amendment in certain circumstances, . . . 'in cases like this
one involving the hearsay rule and its exceptions, we have
always held that the protection provided by art. 12 is
coextensive with the guarantees of the Sixth Amendment'"
[citation omitted]).
8
We only address the meaning of unavailability in criminal
cases where the Commonwealth is the proponent of the evidence,
thereby implicating the defendant's right of confrontation.
10
and the defendant has had an adequate prior opportunity to
cross-examine the declarant." Commonwealth v. Hurley, 455 Mass.
53, 60 (2009). The Sixth Amendment establishes "a rule of
necessity, i.e., that the prosecution either produce, or
demonstrate the unavailability of, the declarant." Commonwealth
v. Roberio, 440 Mass. 245, 247 (2003).
Because there is no definition of the word "unavailability"
in our statutes or rules, "[w]e therefore review those cases in
which this particular exception to the hearsay rule has been
applied." Commonwealth v. DiPietro, 373 Mass. 369, 380 (1977).
Although we declared in Commonwealth v. McKenna, 158 Mass. 207,
210 (1893), that a witness cannot be unavailable because of
illness, we have since held that "a classic case of
unavailability" was shown where a witness was "hospitalized
suddenly for kidney stone surgery on the second day of . . .
trial" and the witness's doctor stated by letter that the
witness would not be released from the hospital until the day
the evidence was expected to (and did) close and would not be
available to testify until seven days later. Roberio, 440 Mass.
at 249-250. See Mass. G. Evid. § 804(a)(4) (2014) (witness may
be unavailable "because of . . . then-existing physical or
mental illness or infirmity"). However, we have yet to provide
trial judges with a framework to analyze whether a witness is
unavailable because of illness or infirmity. We do so now.
11
Where the Commonwealth claims that its witness is
unavailable because of illness or infirmity and that it wishes
to offer in evidence the prior recorded testimony of that
witness, the Commonwealth bears the burden of showing that there
is an unacceptable risk that the witness's health would be
significantly jeopardized if the witness were required to
testify in court on the scheduled date. To meet this burden,
the Commonwealth must provide the judge with reliable, up-to-
date information sufficient to permit the judge to make an
independent finding. See Commonwealth v. Bohannon, 385 Mass.
733, 744-745 (1992) (second motion judge could not rely on first
motion judge's unavailability determination made eight months
before trial). See also Burns v. Clusen, 798 F.2d 931, 935,
942-943 (7th Cir. 1986) (prosecutor should have provided more
current information where latest unavailability hearing was held
three months before trial). If reliable, an unsworn letter from
a physician may be adequate, but only if it provides sufficient
detail about the witness's current medical condition to allow
the judge to evaluate the risk that would be posed if the
witness were to testify in court -- a conclusory assertion is
not enough. See United States v. Gabrion, 648 F.3d 307, 340
(6th Cir. 2011) (doctor's note was sufficient, because it "was
specific as to the nature of each [witness's] illness and very
clear in [the doctor's] opinion that the [witnesses'] health
12
would be jeopardized if they were forced to testify at the
trial"); United States v. McGuire, 307 F.3d 1192, 1205 (9th Cir.
2002) (doctor's note was sufficient where there was "no reason
to doubt the reliability of the evidence concerning [the
witness's] infirmity").
A judge, in his or her discretion, may require more
information than is contained in a doctor's letter regarding the
witness's medical condition, and may direct the means to obtain
that additional information, such as a supplemental letter or
affidavit, a call to the physician over speaker telephone in the
presence of the attorneys, a deposition of the physician, or a
court hearing. See United States v. Donaldson, 978 F.2d 381,
393 (7th Cir. 1992) (trial judge "held a hearing the day [the
witness] was to testify to determine her availability"); Parrott
v. Wilson, 707 F.2d 1262, 1268 (11th Cir. 1983) (parties deposed
witness's psychiatrist). In determining whether the risk that
the witness's health would be jeopardized is unacceptable, a
judge should consider the probability that the witness's
appearance will cause an adverse health consequence, the
severity of the adverse health consequence, such as whether it
would be life-threatening, the importance of the testimony in
the context of the case, and the extent to which the live trial
13
testimony would likely differ from the prior recorded testimony.9
See United States v. Faison, 679 F.2d 292, 297 (3d Cir. 1982)
(trial judge must consider witness's importance to case, nature
and extent of cross-examination in earlier testimony, nature of
illness, probable duration of illness, and any special
circumstances counselling against delay). See also Ecker v.
Scott, 69 F.3d 69, 72 (5th Cir. 1995) (judges should consider
"Faison factors" to determine unavailability).
Where a judge finds that that there is an unacceptable risk
that the witness's health would be jeopardized if the witness
were required to testify in court on the scheduled date, the
judge should then consider whether the risk would be acceptable
if the trial were continued to a future date. See Faison, supra
at 296 (trial judge should consider possibility of adjourning
trial for reasonable period to afford witness enough time to
recover from illness). Where a continuance would change the
risk calculus, the judge should determine whether, considering
all the circumstances, a continuance would serve the interests
of justice, taking into account the burden of such a continuance
on the court, the parties, the other witnesses, and the victims.
See id. at 297 n.4. Thus, a witness is unavailable if there is
9
As to this last factor, the prior recorded testimony will
generally be similar to live trial testimony where it was
recorded in an earlier trial in the same case, and less similar
where it was recorded at a pretrial hearing, such as a detention
hearing, as it was in this case.
14
an unacceptable risk that the witness's health would be
jeopardized by testifying in court on the scheduled date and
either (1) a continuance would not reduce the risk to an
acceptable level, or (2) a continuance would make the risk
acceptable but would not serve the interests of justice.
In addition, before determining whether to admit prior
recorded testimony of an unavailable witness, the judge should
consider whether there would be an unacceptable risk that the
witness's health would be jeopardized if the witness's testimony
were obtained through a deposition at a suitable out-of-court
location, such as an attorney's office, the witness's home, or a
health facility. See Mass. R. Crim. P. 35 (g), 378 Mass. 906
(1979) (deposition admissible as substantive evidence where
deponent is unable to testify at trial "because of . . .
physical or mental illness or infirmity"). See also United
States v. Keithan, 751 F.2d 9, 12-13 (1st Cir. 1984) (finding no
abuse of discretion in admission of videotaped depositions at
trial where one witness was "eighty-seven years old at the time
of trial and suffered from a back condition which prevented him
from walking" and second witness was "eighty-three years old and
suffered from a heart condition which confined her to her
home"). If the witness is unavailable, a deposition may be
admissible in evidence and, especially if videotaped, may be the
best alternative to the witness being at trial. See United
15
States v. McGowan, 590 F.3d 446, 456 (7th Cir. 2009)
("videotapes allowed the jury to fully experience [the
witness's] testimony, to view her demeanor, to hear her voice
and to determine her credibility").10
Additionally, the Commonwealth must make "a good faith
effort to . . . produce the witness at trial." Commonwealth v.
Sena, 441 Mass. 822, 832 (2004). See Commonwealth v. Ross, 426
Mass. 555, 557-558 (1998) ("The Commonwealth must exercise
substantial diligence in order to meet its burden of showing a
witness's unavailability"). The "good faith effort" requirement
is most commonly at issue where unavailability stems from an
inability to locate and procure the witness from outside the
jurisdiction.11 But the requirement applies to all cases of
10
Where the witness had previously testified at a trial in
the same case, we leave to the discretion of the trial judge
whether, in view of the precarious health of the witness or the
witness's present mental condition, the deposition would be
preferable to the prior recorded testimony. Moreover, a judge
also retains discretion to determine the form of the deposition.
Although a videotaped deposition is generally preferable,
because personal observation of a witness "aids immeasurably" a
jury's evaluation of a witness's credibility, see Commonwealth
v. Bergstrom, 402 Mass. 534, 548 (1988), it is not a perfect
substitute for live testimony. See id. at 550 ("we cannot
conclude that reducing the life-size picture of trial testimony
to the image on a television screen affords to a jury the
equivalent of personal observation").
11
See, e.g., Commonwealth v. Sena, 441 Mass. 822, 832-833
(2004) (good faith demonstrated by enlisting authorities in
Puerto Rico to search for witness one week prior to trial);
Commonwealth v. Florek, 48 Mass. App. Ct. 414, 415-416 (2000)
(failure to show good faith where Commonwealth knew witness's
16
unavailability where there is some possibility that the witness
may be produced. See Ohio v. Roberts, 448 U.S. 56, 74 (1980)
(good faith requirement may apply where there is remote
possibility that affirmative measures might produce witness).
Where a witness is unavailable due to illness or infirmity, the
"good faith effort" required of the Commonwealth is to promptly
inform the court and the defendant of the unavailability of the
witness once the Commonwealth learns of it, so that they have an
adequate opportunity to learn more about the witness's medical
condition and to explore the alternative of a continuance or a
deposition. Where the unavailability of the witness is not made
known until the first day of trial, the defendant has little
opportunity to investigate the witness's medical condition to
challenge the prosecutor's claim of unavailability. At that
juncture, ordering a continuance or scheduling a deposition
might be impracticable, effectively denying the defendant the
possibility of these alternatives.
Here, Williams received a summons on October 18, 2011, and
returned it with a notation that she would not be able to
testify at trial because she was under a doctor's care.
Williams also provided the Commonwealth the doctor's letter
dated October 24. Yet, the Commonwealth did not file its motion
Kentucky address but did little more than send summons to
produce witness).
17
in limine, or otherwise alert the court or the defendant of the
witness's unavailability until November 15, the first day of
trial.12 By not promptly informing either the defendant or the
judge of the witness's unavailability after receipt of the
doctor's letter, the Commonwealth limited their opportunity to
obtain further information about the witness's medical
condition; all that reasonably was available was the option
invited by the doctor to telephone him for additional
information. This option was not pursued, and the judge rested
his ruling solely on the doctor's letter.
Because the letter did not provide a sufficient factual
basis to support the judge's finding of unavailability, we
conclude that the judge abused his discretion in making such a
finding on the letter alone. The doctor's medical opinion "that
the stress of testifying in court might be detrimental to her
health" offered no guidance as to the likelihood that testifying
would have an adverse health consequence or as to the severity
of the health consequence. The letter listed the witness's
various medical conditions but provided no guidance as to their
stage, severity, duration, or symptoms, or as to the limitations
they impose on everyday activity. Nor did the letter provide
12
The record does not reflect when the prosecutor received
the doctor's letter or the returned summons, but the
Commonwealth at oral argument did not challenge the contention
that the prosecutor learned of the witness's unavailability well
before the judge or the defendant was advised of it.
18
any guidance whether the health risks would be obviated or
significantly lessened if she were to testify through a
deposition. Especially where Williams offered important
identification testimony and where her prior recorded testimony
was taken at a pretrial detention hearing rather than an earlier
trial, more detailed information than was provided in this
letter is required to support a finding of unavailability.
Although we rest our conclusion on the insufficiency of the
doctor's letter, our conclusion is strengthened by the
Commonwealth's failure to make the "good faith effort" of
providing timely notice to the court and the defendant of its
claim of unavailability.
Having found that the defendant was denied his
constitutional right of confrontation by the insufficiency of
the evidence that Williams was unavailable to testify, we
consider whether the error was harmless beyond a reasonable
doubt. See Commonwealth v. Burgess, 450 Mass. 422, 431-432
(2008). We conclude it was not. In determining whether an
error is harmless beyond a reasonable doubt, the "essential
question" is whether the error had, or might have had, an effect
on the jury and whether the error contributed to or might have
contributed to the jury's verdicts. Commonwealth v. Vasquez,
456 Mass. 350, 360 (2010), quoting Commonwealth v. Perrot, 407
Mass. 539, 549 (1990).
19
Here, Williams's prior recorded testimony contained
important statements of identification. Stephen identified the
defendant, but only as the person getting out of the truck with
Matthew after he followed the truck out of the neighborhood.
Williams was the only witness who recognized the defendant at
the scene of the crime, and later identified him at an out-of-
court identification procedure. Neither Sivertsen nor Tobia --
the two eyewitnesses to the crime -- could identify the
defendant at the pretrial identification procedure. Williams's
identification carried evidentiary weight because she knew the
defendant well and, at the scene of the crime, he called her by
the name he always called her, "Grandma." Had her prior
recorded testimony been excluded, the jury would also not have
heard Detective Sauvé's testimony regarding Williams's
identification of the defendant at the identification procedure,
because a witness's pretrial identification is admissible for
substantive purposes only where "the identifying witness
testifies at trial and is subject to cross-examination."
Commonwealth v. Barbosa, 463 Mass. 116, 130 (2012). See Mass.
G. Evid. § 801(d)(1)(C) (2014). Thus, we conclude that the
erroneous admission of her testimony was not harmless beyond a
reasonable doubt. Therefore, we must vacate the defendant's
convictions and remand for a new trial.
20
b. Reasonable opportunity and similar motivation. The
defendant also claims that, even if Williams were unavailable,
her prior recorded testimony should not have been admitted
because the defendant did not have a reasonable opportunity or
similar motivation to cross-examine the witness at the pretrial
detention hearing. See Commonwealth v. Arrington, 455 Mass.
437, 442 (2009), quoting Commonwealth v. Trigones, 397 Mass.
633, 638 (1986) (prior testimony must have been given "in a
proceeding addressed to substantially the same issues" as
current proceeding, with "reasonable opportunity and similar
motivation" for cross-examination). Because Williams may be
found unavailable on retrial, we address this claim of error.
"A defendant has an adequate prior opportunity to cross-
examine an unavailable witness when (1) the declarant was under
oath at the prior proceeding . . . ; (2) the defendant was
represented by counsel at the prior proceeding . . . ; (3) the
prior proceeding was conducted before a judicial tribunal,
equipped to provide a judicial record of the hearings . . . ;
and (4) the prior proceeding was addressed to substantially the
same issues as in the current proceeding, and the defendant had
[a] reasonable opportunity and similar motivation on the prior
occasion for cross-examination of the declarant" (quotations and
citations omitted). Hurley, 455 Mass. at 60. The defendant
contends that he did not have "reasonable opportunity and
21
similar motivation" to cross-examine Williams at the pretrial
detention hearing for two reasons: first, his attorney could
not explore any potential inconsistencies between the
testimonies of Williams and Stephen, where the police did not
know that Stephen was a witness at the time of the hearing; and
second, his attorney's primary goal on cross-examination at that
hearing was to show that the defendant would not "endanger the
safety of any other person or the community," G. L. c. 276,
§ 58A, rather than to challenge the witness's identification or
credibility.13
The "reasonable opportunity" requirement was satisfied
here, because the defendant had a reasonable opportunity to
cross-examine the witness regarding her testimony on direct
examination; defense counsel does not need to have had the same
opportunity to question the witness about the testimony of other
witnesses. See Hurley, supra at 62-63, quoting Roberio, 440
Mass. at 251 ("what is essential is that the 'trier of fact
[have] a satisfactory basis for evaluating the truth of the
prior statement'"). Nor does a "reasonable opportunity" mean
13
To determine whether a defendant is so dangerous "that no
conditions of release will reasonably assure the safety of any
other person or the community," a judge may consider, among
other issues, "the nature and seriousness of the danger posed by
the defendant if released, and the defendant's family ties,
employment record, history of mental illness, record of
convictions, and reputation." Commonwealth v. Hurley, 455 Mass.
53, 61 (2009), quoting G. L. c. 276, § 58A (3), (5).
22
that defense counsel must have obtained the same discovery at
the time of the prior hearing as counsel has at the time of
trial. See Hurley, supra at 62, quoting Delaware v. Fensterer,
474 U.S. 15, 20 (1985) ("A defendant is not entitled under the
confrontation clause to a cross-examination that is 'effective
in whatever way, and to whatever extent, the defense might
wish'").
Although "there may be circumstances in which a defense
counsel's motive to cross-examine a declarant at a pretrial
detention hearing may differ from her motive to cross-examine at
trial, such as where the defense counsel did not challenge the
declarant's accuracy or credibility at cross-examination in the
prior hearing and focused solely on challenging the defendant's
dangerousness," Hurley, supra at 63 n.9, those are not the
circumstances of this case. The defendant's cross-examination
of Williams focused primarily on challenging the reliability of
her identification of the defendant and distinguishing what
Williams actually saw from what she learned from other
witnesses. Defense counsel elicited Williams's admission that
she did not see anybody fire the gun, that her information about
who fired the gun or that a gun was fired at all came from other
witnesses, and that she could not be sure whether the bearded
man shown in the photographic array was the same person she
identified in the single photograph. Although the cross-
23
examination also established that the defendant had never
threatened Williams, and that she had never heard that he had
engaged in violent behavior, the primary focus of the cross-
examination was not to demonstrate that the defendant was not
dangerous. Nor could it reasonably have been the primary focus,
where Williams only knew the defendant as her grandson's
childhood friend and had not seen him for one and one-half years
prior to the incident. Therefore, we conclude that if Williams
is determined to be unavailable, redacted portions of her
pretrial testimony would be admissible on retrial.14
2. Admission of photographs of similar firearm. At trial,
Tobia testified that the firearm in the defendant's possession
was a silver-colored Derringer, stating that he recognized it as
such because his father is an avid hunter who owns a few
Derringers and that he has "handled" Derringers. The
14
Because the issue may arise on retrial, we emphasize that
Williams's pretrial testimony should not be admitted in its
entirety. Some of her prior testimony contained hearsay that is
admissible at a pretrial detention hearing under G. L. c. 276,
§ 58A, see Abbott A. v. Commonwealth, 458 Mass. 24, 34 (2010),
but would not be admissible at trial unless it fell within a
hearsay exception. See Commonwealth v. Wright, 469 Mass. 447,
464-465 (2014) (some of witness's prior recorded testimony,
conveying what her husband had said, "constitute[d] classic
'totem pole' or 'layered' hearsay" and would not be admissible).
Moreover, some of her testimony at the pretrial detention
hearing vouched for the truthfulness of Sivertsen and Tobia, and
should not be admitted. See Commonwealth v. Quinn, 469 Mass.
641, 646 (2014) ("No witness, neither a lay witness nor an
expert, may offer an opinion regarding the credibility of
another witness").
24
Commonwealth presented two photographs to Tobia that he said
depicted a Derringer, although not the Derringer Tobia actually
saw on May 11. Even though both the prosecutor and defense
counsel pointed out that the photographs did not show the actual
gun used, the defendant objected to the admission of the
photographs in evidence and argues on appeal that the judge
abused his discretion in admitting them. In the event the issue
is raised again on retrial, we conclude that it was not an abuse
of discretion for the judge to admit the exemplar photographs.
"Where for whatever reasons original items of physical
evidence cannot be produced, substitutes similar to the
originals have often been received as exhibits, in criminal as
well as civil trials, to illustrate and corroborate testimony in
which the originals figured: the admission of such [exemplars]
is well understood to rest in the discretion of the court."
Commonwealth v. Luna, 46 Mass. App. Ct. 90, 93 (1998). Where it
is made clear at trial that photographs simply depict a similar-
looking firearm and do not depict the actual firearm used in the
incident, it is not an abuse of discretion to admit the exemplar
photographs. See Commonwealth v. Ellis, 373 Mass. 1, 7 (1977)
(no abuse of discretion where "prosecution made it clear by
questions that the model was not the murder weapon but was
merely illustrative"); Commonwealth v. Souza, 34 Mass. App. Ct.
436, 444-445 (1993) (spiked wristband "similar but perhaps not
25
identical" to one used in crime was admissible where questioning
made clear that witness could not say that exemplar wristband
was actual wristband used in attack). Although the judge did
not give a limiting instruction to remind the jury that the
photographs were only exemplars, see Commonwealth v. Stewart,
398 Mass. 535, 542 n.6 (1986), such an instruction is not
mandatory and was not necessary where the status of the
photographs as exemplars was made clear from the testimony.15
See Luna, supra at 94 (absence of limiting instruction was not
error where fact "[t]hat the exhibit was only a stand-in was
stated repeatedly . . . could not have been lost on the jury").
3. Sufficiency of evidence for conviction of unlawful
carrying of a firearm. At the close of the Commonwealth's
evidence and again at the close of all the evidence, the judge
denied the defendant's motion for a required finding of not
guilty as to the charge of unlawful carrying of a firearm, in
violation of G. L. c. 269, § 10 (a). On appeal, the defendant
contends that the evidence was insufficient as a matter of law,
because to be a "firearm," as defined under G. L. c. 140, § 121,
the weapon must be capable of discharging a shot or bullet. See
Commonwealth v. Sampson, 383 Mass. 750, 753 (1981) (firearm must
be "[1] a weapon, [2] capable of discharging a shot or bullet,
15
The judge declared that he intended to give a limiting
instruction on the exemplars but did not do so. There was no
objection to the absence of a limiting instruction.
26
and [3] under a certain length").16 We address this issue even
though we have vacated the convictions because, if the defendant
is correct, he would be entitled to a judgment of acquittal and
not merely a new trial.
We conclude that, viewed in the light most favorable to the
Commonwealth, the evidence was sufficient to permit a reasonable
jury to conclude beyond a reasonable doubt that the gun the
defendant displayed was capable of discharging a bullet, even
where there was no gun found, no casings or bullets recovered,
no ballistics evidence, and no expert testimony. As earlier
noted, Tobia testified that he saw the defendant point a gun at
him, which he knew to be a Derringer from his experience with
firearms. He saw the defendant struggle with the gun after it
misfired, break it open to extract two shells, load it again,
and fire it at him. When the gun fired, Tobia "saw the flash
come out of the barrel of the gun," and heard a "big, bang
noise," which sounded "exactly the same" as the gunshots he had
heard when he went shooting with his father.17 From the
16
The Commonwealth need not show that the gun was actually
capable of discharging a bullet at the time of the incident; it
need only show that the gun was capable of doing so with a
"relatively slight repair, replacement, or adjustment."
Commonwealth v. Bartholomew, 326 Mass. 218, 220 (1950). See
Commonwealth v. Jefferson, 461 Mass. 821, 828 (2012).
17
Sivertsen also testified to seeing a small, silver gun
and hearing a "loud bang like a gun noise." Stephen Borges
testified that from the apartment cellar he heard "a gunfire go
27
witnesses' testimony, a reasonable jury could find beyond a
reasonable doubt that the defendant loaded and then fired a
weapon that looked like a gun, sounded like a gun, and flashed
like a gun. With this evidence, a reasonable jury did not need
expert testimony to find beyond a reasonable doubt that the gun
was capable of discharging a bullet and, consequently, was a
"firearm" that was unlawfully carried by the defendant. See
Commonwealth v. Tuitt, 393 Mass. 801, 809-810 (1985) (expert
testimony unnecessary to prove gun was capable of discharge
where defendant threatened victim with gun and said, "Don't get
killed over anybody else's money"); Commonwealth v. Stallions, 9
Mass. App. Ct. 23, 25-26 (1980) (jury could determine whether
revolver was capable of discharging bullet without any evidence
that revolver had been tested and found operable).
Conclusion. We conclude that the judge erred by allowing
the Commonwealth to introduce prior recorded testimony without
sufficient proof of the witness's unavailability. Because the
error was not harmless beyond a reasonable doubt, we vacate the
judgments of conviction and remand the case for a new trial
consistent with this opinion.
So ordered.
off," and that he could discern that the sound was gunfire
because he was "brought up around guns" and could distinguish
between a gunshot and fireworks. Moreover, the across-the-
street neighbor, Paul Sarmento, testified to hearing a sound
like a truck backfiring -- "a pow sound."