Commonwealth v. Housewright (Lawyers Weekly No. 10-025-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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.     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 stress of testifying in court “might” be […]

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