Commonwealth v. Housewright

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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."