Argued: October 7, 2014
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.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[25 N.E.3d 277] 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 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 [25 N.E.3d 278] vacate the convictions and remand for a new trial.
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, 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, 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."  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 window where Tobia was standing. Williams had already reentered her home, and " didn't
see anything" related to the shooting. 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 [25 N.E.3d 279] 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 that one of the other photographs depicted the perpetrator. Tobia viewed the same set of photographs and, despite stating he was ninety per cent confident, chose not to make an identification.
A couple days later, Williams went to the police station with her daughter, Laurie Borges, to view the photographic array. 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.
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 ...