Commonwealth v. Barry

116 N.E.3d 554 (Mass. 2019)

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Nature of the Case

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Facts

Porreca met some friends at a bar. Porreca drank four or five beers before he, McCormack, Cremone, Terfry, Almeida, and Whitson decided to go to a club in Boston. The group left the bar and proceeded to Cremone's sister's car. McCormack sat in the driver's seat, Terfry sat in the front passenger seat, Cremone sat in the rear driver's side seat, and Porreca was preparing to enter the rear seat on the passenger's side. Porreca looked up to see D and Cahill running in their direction. The men wore dark hoods that covered their ears, hair, and heads, but left their faces exposed. Cahill ran toward the passenger's side and fired a nine-millimeter Uzi-type semiautomatic weapon into it, striking McCormack several times and shooting Porreca and Cremone twice each. Porreca had seen D running toward the driver's side of the car, and Cremone testified that a man ran to the driver's side of the vehicle, put a gun to McCormack's head, and shot him. Porreca observed Cahill turning toward the vehicle and heard “a lot of gunshots” as he retreated into the bar. As Porreca entered the bar, he yelled “call 9-1-1” and approached Whitson, with whom the group had been socializing earlier. Porreca exclaimed, “Fuck'n Barry and Cahill” to Whitson. A .40 caliber pistol was found on the ground next to the driver's side of the vehicle. The Uzi used in the attack was found by two teenagers walking home on the sidewalk of Whitman Street, close to the bar. One of the teenagers who found the Uzi took it home, unloaded it, and hid it in the basement of his house before turning it into the police the following day. Porreca was under Federal investigation for his involvement in the kidnapping of an area drug dealer that took place in 1995 (kidnapping). Barry and Cahill were quickly implicated in the murder and corroborating evidence began to pile up. A medical examiner testified that the gunshot wound to McCormack's head alone was lethal. He further testified about a separate, independently lethal gunshot wound to McCormack's back. The bullet removed from McCormack's head was a .40 caliber bullet that matched the pistol left on the scene, while the second lethal wound was caused by an undetermined, but different, caliber bullet. One .40 caliber shell casing was recovered from the crime scene, found in the backseat of the car, and fourteen nine-millimeter shell casings were found on the scene - thirteen on or around the car and one on the floor of the car. Ds were convicted and both appealed after motions for new trials were denied. Ds maintain that the evidence presented at trial was insufficient to establish which gunshot wound was fatal.