Opinion
18-P-175
04-29-2020
COMMONWEALTH v. Will CURRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Superior Court, a jury convicted the defendant, Will Curry, of armed assault with intent to murder, assault by means of a dangerous weapon, attempted assault and battery by means of discharging a firearm, carrying a loaded firearm without a license, threatening to commit a crime, unlawful possession of a firearm, and unlawful possession of ammunition. On appeal, the defendant contends that the evidence at trial was insufficient to prove that he was the shooter. He also contends that the judge abused his discretion in admitting recordings of "jail calls" into evidence. We affirm.
The jury found the defendant guilty on all counts. Subsequently, the defendant was arraigned on second offense portions of the unlawful possession of a firearm and unlawful possession of ammunition counts. Following a jury-waived trial, the judge found the defendant guilty of the second offense portion of both counts, and guilty of being a level three armed career criminal in violation of G. L. c. 269, § 10G. The subsequent offense portions of the firearm and ammunition convictions were dismissed at the request of the Commonwealth through the filing of a nolle prosequi.
Background. The jury could have found the following facts. In the early morning on May 16, 2015, a former friend of the defendant (hereafter "witness") was sleeping in her apartment at 146 Barnard Street in the Dorchester section of Boston. At approximately 4:00 A . M ., the defendant drunkenly entered the witness's apartment, and demanded money from her. After a brief altercation, the defendant went outside. Shortly thereafter, the witness heard the defendant's voice angrily yell "[y]ou pull a knife out on me, I'll kill you," followed by gunshots, whereupon the witness called 911.
The witness had been in a twenty-year on and off sexual relationship with the defendant, whom she knew as "Junior."
On that same early morning, the victim was in his apartment at 144 Barnard Street, which he shared with a friend (hereafter "roommate"). Prior to May 16, 2015, the victim knew the defendant as his neighbor and indicated that the defendant had identified himself by the name "Slave." The defendant previously had provided the victim with two phone numbers to contact him.
Sometime between 4:00 A . M . and 5:00 A . M ., the victim heard knocking at his front door. Upon opening the door, the victim saw the defendant, alone, in a hoodie and red jacket. The defendant had his hand in his pocket and demanded money from the victim. The victim interpreted the defendant's demand to be a reference to $80 that the victim had previously borrowed from him. The victim responded that he had already paid him back, and slammed the door shut. Fearing that the defendant might be armed based on the manner in which he held his hand in his pocket, the victim immediately turned and ran toward his kitchen "to get ... something to protect [him]self." As soon as he turned around, the victim heard gunshots and saw bullets coming through his front door. The victim also overheard the defendant say "[m]otherfucker, I'm going to kill you." After the shooting, the victim observed through an open window the defendant walking away toward his own house.
After hearing the gunshots, the roommate called 911, and police officers responded to the scene. Officers observed two bullet holes in the front door of 144 Barnard Street, as well as other ballistics damage to the walls inside the victim's apartment. While officers recovered two .38 caliber/nine-millimeter projectiles from the scene, no shell casings were found, and no firearm was recovered. Officers also spoke to the victim, his roommate, and the witness. The victim provided a description of the defendant, the name by which he knew the defendant, and the two phone numbers he had for the defendant. The witness later appeared at a police station for a formal interview, where she identified an individual in a photo the police showed her as the person she knew as "Junior Curry." Officers used the photo the witness selected to compile a photographic array for the victim, from which the victim identified the defendant as the person who shot at him.
The two projectiles were submitted for analysis, and a Boston Police Department ballistician concluded that they were fired from the same weapon. The ballistician also testified that she had never examined a .38 caliber or nine-millimeter bullet that was fired from a firearm whose barrel exceeded sixteen inches in length.
The photo shown to the witness was a photo of the defendant.
After his arrest, the defendant made several phone calls to several phone numbers from the jail where he was held, all of which were recorded. The Commonwealth sought to admit into evidence several of these recordings, eight of which were ultimately admitted. At the close of the Commonwealth's case, the defendant moved for required findings of not guilty as to each charge. The judge denied the motion.
Discussion. 1. Sufficiency of the evidence. The defendant first contends that the judge erred in denying his motions for required findings of not guilty because there was insufficient evidence that he shot at the victim's front door. He also contends that the evidence was insufficient to prove that he possessed a firearm with a barrel length of less than sixteen inches. Both claims are unavailing.
The defendant challenges the denial of the motions for required findings of not guilty as to all charges except for the threatening to commit a crime charge.
In evaluating whether a motion for required finding of not guilty was properly denied, the reviewing court "must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence need only be reasonable and possible; [they] need not be necessary or inescapable" (quotation omitted). Commonwealth v. Grandison, 433 Mass. 135, 141 (2001).
The present circumstances do not present a close case because the Commonwealth presented ample evidence to establish that the defendant was the person who fired shots through the victim's front door. The victim testified that the defendant was alone when he arrived at his door between 4 A . M . and 5 A . M ., and that the defendant had his hand in his pocket in a manner that prompted the victim to run to the kitchen to get something to protect himself. The victim also testified that the shooting occurred immediately upon his closing the door. Furthermore, the victim testified that he heard the defendant state "[m]otherfucker, I'm going to kill you" as the shooting occurred, which was corroborated by the witness's testimony that she heard the defendant yell "I'll kill you," followed by gunshots. See, e.g., Commonwealth v. Bush, 427 Mass. 26, 30 (1998) (jury could conclude defendant was murderer "even though no witness actually saw him fire the shots that killed the two victims" because his "voice was heard from the area of the murders just before the shots were fired, and no one else was seen there").
Further, the victim testified that he observed through an open window the defendant walking away toward his own house immediately after the shooting. The victim also identified the defendant as the person who was at his door in the morning of May 16, 2015, both at trial and in a photo array shown to him by the police. Finally, the witness's testimony corroborated the victim's in myriad respects. Based on all the evidence presented at trial, the jury could conclude beyond a reasonable doubt that the defendant walked up to the victim's residence with his hand in his pocket in a manner consistent with concealing a weapon, threatened to kill the victim, and shot at his front door. The evidence, viewed "in the light most favorable to the Commonwealth," was more than sufficient to allow the jury to convict the defendant of the charges beyond a reasonable doubt. Rivera, 425 Mass. at 648. See Bush, 427 Mass. at 30 ("An inference drawn from circumstantial evidence need only be reasonable and possible; it need not be necessary or inescapable" [quotation omitted] ).
The defendant argues that the evidence at trial suggested that he was the target of the shooting after an argument with another unidentified individual, and that the evidence at trial pertaining to the shooter's identity was "equivocal" at best. We disagree with the defendant's characterization of the evidence. Even assuming that the defendant's characterization is accurate, "[t]o the extent that conflicting inferences may be drawn from the evidence, it is for the jury to decide which version to credit." Commonwealth v. Miranda, 458 Mass. 100, 113 (2010), cert. denied, 565 U.S. 1013 (2011). See Grandison, 433 Mass. at 141 ("The government need not exclude every possible hypothesis embracing innocence to prove its case"); Commonwealth v. Christian, 430 Mass. 552, 555 (2000) ("Although it may be arguable in a particular case that other inferences could be drawn from some of the evidence, our calculus does not include the fact that some of the evidence could be characterized as equivocal or contradictory" [quotation omitted] ).
The evidence at trial also sufficed to prove that the defendant possessed a firearm with a barrel less than sixteen inches in length. When considering the sufficiency of the evidence as to a firearm's barrel length, circumstantial evidence can be sufficient to allow the fact finder to infer the length of the barrel even in the absence of the firearm itself. See, e.g., Commonwealth v. Manning, 44 Mass. App. Ct. 695, 707 (1998) (sufficient circumstantial evidence to show that firearm's barrel was sixteen inches or less even where no firearm, casings, or bullets were offered in evidence).
General Laws c. 140, § 121, defines a "firearm" as "a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured."
Here, the Commonwealth presented circumstantial evidence pertaining to the barrel of the gun the defendant used to shoot at the victim's front door. At trial, the victim demonstrated to the jury the way the defendant had his hand in his pocket, and testified to thinking that the defendant had a weapon therein, which in turn prompted the victim to slam the door shut and run to protect himself. No gun or portion thereof was visible to the victim. Immediately after the victim shut the door, shots were fired through his door. Furthermore, the ballistician who examined the bullets recovered from the scene testified that in her experience, she had never examined a .38 caliber or nine-millimeter bullet fired from a firearm with a barrel longer than sixteen inches. From this testimony, the jury could reasonably infer that a rifle or other weapon with a barrel greater than sixteen inches would not be able to fit completely in the defendant's pocket. See Commonwealth v. Evans, 439 Mass. 184, 198, cert. denied, 540 U.S. 923, and 540 U.S. 973 (2003) ("Because [the defendant] removed the gun from his pocket, the grand jury could have inferred that the barrel length was less than sixteen inches"); Commonwealth v. Naylor, 73 Mass. App. Ct. 518, 525 (2009) ("In light of the circumstances of the shooting described by the victims, including ... the absence of any statement by either victim of having seen a barrel, the jury could reasonably infer that the shooter fired a handgun rather than a shotgun or rifle").
In denying the motion for a required finding of not guilty, the judge noted, in part, that "all indications were that whatever gun [the defendant] possessed was in his pocket. One can't be carrying a shotgun or rifle in one's pocket."
2. Admission of jail calls. The defendant next contends that the judge erred in admitting recordings of the defendant's jail calls. This claim is also unavailing.
Defense counsel objected to the admission of each of the eight jail call recordings. We thus review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). While "[e]vidence of prior bad acts generally is not admissible to prove bad character or propensity to commit the crime charged," Commonwealth v. Jackson, 417 Mass. 830, 835 (1994), "such evidence may be admissible, if relevant, to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive." Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994). "Whether evidence is relevant and whether its probative value is substantially outweighed by the prejudicial effect is in the ‘trial judge's broad discretion and [is] not disturbed absent palpable error.’ " Commonwealth v. Khan, 92 Mass. App. Ct. 487, 495 (2017), quoting Commonwealth v. Simpson, 434 Mass. 570, 579 (2001).
The defendant appears to claim that the jail calls should have been excluded because the defendant's statements during the calls related to drug dealing, money, and gun violence were highly inflammatory, resulting in unfair prejudice that "substantially outweighed" any probative value. Kahn, 92 Mass. App. Ct. at 495. We disagree. The jail call recordings were admissible for and relevant to permissible, noncharacter purposes, such as corroboration of the defendant's identity, motive, and his access to weapons. Furthermore, the judge listened to and discussed each call carefully and methodically with both prosecution and defense counsel, and weighed the probative value against the potential unfair prejudice for each call. Given the appreciable relevance and probative value of the eight jail calls, we cannot say that the judge committed "palpable error" in admitting them. Simpson, 434 Mass. at 579. See id. (no error in admitting statement that "had a rational tendency to prove a material issue, the defendant's state of mind," even where "[s]uch a statement in other circumstances could tend to prove guilt by evidence of bad character" [quotation omitted] ).
For example, the first and fifth calls played to the jury were, as the judge found, relevant to the defendant's motive for the charged crime -- obtaining money. The second call corroborated the fact that the defendant was sometimes known as "Slave." The third and fourth calls corroborated the defendant's ties to one of the phone numbers he had given to the victim and corroborated the defendant's identity as "Slave."
The judge on multiple occasions offered to give a limiting instruction to the jury to prohibit the use of the jail call recordings as evidence of bad character or prohibited purposes. Defense counsel, however, did not accept the judge's repeated offer.
Additionally, the defendant briefly argues that one of the jail call recordings was improperly redacted. The defendant's brief does not specify the jail call recording to which his argument relates. Based on the record citations in the defendant's brief, the defendant appears to refer to the June 24, 2015, jail call -- the seventh call played for the jury. When the admissibility of this call was discussed at the outset of the trial, defense counsel objected on relevance grounds, and argued that certain references to money in the recording were "completely taken out of context." However, the judge did not at any point order the Commonwealth to redact any portion of this call. The only other record citation in the relevant section of the defendant's brief relates to a different jail call -- one that took place on May 25, 2015. The judge excluded this May 25, 2015, jail call, which was never played for the jury. In short, the record reveals that this claim is without merit.
Judgments affirmed.