Commonwealth v. Curtis Stubbs.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-533

COMMONWEALTH

vs.

CURTIS STUBBS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury found him guilty of two counts

of armed robbery, Curtis Stubbs, the defendant, appealed. We

affirm.

Background. On June 5, 2021, at approximately 3:00 P.M., a

man approached two males on a sidewalk in Lynn, brandished a

firearm, took a gold chain from one and a bracelet and chain

from the other, and fled.

A police investigation focused on the defendant. Video

surveillance footage from various locations showed the robber

(with a dark complexion, facial hair, and long dreadlocks and

wearing a gray sweatsuit, a dark head covering, and dark

footwear with white soles and red laces) arrive in a white SUV,
park the SUV, walk to the scene of the robbery, hold a handgun

while pacing around the victims, receive items, run away, return

to the SUV, and drive off. The video recordings captured the

plate number of the SUV, which was registered to the defendant's

fiancée, who resided in Reading. The police obtained security

footage from her landlord in Reading and confirmed that the SUV

was consistently parked at this address and that someone whose

appearance was consistent with the robber depicted in the

surveillance videos regularly appeared at the property and drove

the white SUV.

On June 23, 2021, while executing an arrest warrant, the

police stopped a different vehicle driven by the defendant's

fiancée. As captured on police body camera video, officers

ordered the defendant, who was sitting in the front passenger

seat, out of the vehicle, searched a bag strapped around his

torso, found a semiautomatic handgun, and arrested him. The

defendant's complexion, facial hair, dreadlocks, head covering,

and footwear looked similar to those of the robber depicted in

the surveillance videos. Officers also saw two cell phones in

the vehicle, which the fiancée claimed belonged to her. Cell

tower records placed one of the phones in the general area of

the robberies at approximately 3:03 P.M. on June 5, 2021. At

approximately 4:30 P.M., the phone moved to the general vicinity

of the fiancée's apartment in Reading. Officers subsequently

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executed a search warrant at the fiancée's apartment. In the

laundry area of the apartment, the police recovered a sweatshirt

and sweatpants similar in appearance to what was worn by the

robber.

On June 24, 2021, both victims went to the police station.

The police presented both victims, separately, with a

photographic array containing the defendant's photograph. Both

victims identified the defendant as the robber.

Discussion. 1. Sufficiency of identification evidence.

In considering a challenge to the sufficiency of the evidence,

we "review the evidence in the light most favorable to the

Commonwealth to determine whether 'any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'" Commonwealth v. Joyner, 467 Mass. 176, 179

(2014), quoting Commonwealth v. Powell, 459 Mass. 572, 579

(2011), cert. denied, 565 U.S. 1262 (2012).

The Commonwealth presented ample evidence pointing to the

defendant as the robber. Surveillance video showed that the

robber drove the SUV belonging to the defendant's fiancée.

Additional video from the fiancée's apartment showed that a man

matching the appearance of the robber regularly appeared at the

apartment and drove the SUV. Just weeks after the robberies,

the police found the defendant riding in a vehicle with his

fiancée, and he had a semiautomatic handgun in a bag strapped to

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his torso. His complexion, facial hair, dreadlocks, head

covering, and footwear appeared similar to those of the robber

in the surveillance videos. Cell tower records placed the

fiancée's cell phone at the general time and place of the

robberies and flight route to the apartment. In the laundry

area of the fiancée's apartment, the police recovered a

sweatshirt and sweatpants that matched the appearance of

clothing worn by the robber. Through photographic arrays, both

victims identified the defendant as the robber. Viewing this

evidence, any rational juror could have found the defendant

guilty beyond a reasonable doubt. Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).

We reject the defendant's argument that the victims'

testimony at trial precluded guilty verdicts. He points to both

victims testifying that they did not see the robber's face, and

one victim disclaiming that the defendant was the robber.

Contrary to the defendant's claim, jurors were free to accept or

reject such testimony and could rely upon the compelling

evidence previously discussed that pointed toward the

defendant's guilt. See Commonwealth v. Kapaia, 490 Mass. 787,

793 (2022) (province of jury to decide weight and credibility

where "testimony from some witnesses was inconsistent" with

other evidence); Commonwealth v. Clements, 436 Mass. 190, 195

(2002) ("determination of the reliability of the pretrial

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identifications versus the in-court disavowal was a matter for

the jury"); Commonwealth v. Price, 72 Mass. App. Ct. 280, 283-

285 (2008) (sufficient evidence of identification although

"defendant was not identified by each of his victims in court").

2. Verdicts following note on disagreement. The verdict

arose through the following sequence of events. After

deliberating for approximately four hours, jurors sent the judge

a note stating that they could not come to an agreement. Given

three and one-half days of testimony and substantial video

evidence, the judge concluded that jurors had not engaged in due

and thorough deliberation, brought them back to the courtroom,

provided a modified version of the Tuey-Rodriguez instruction,

and sent them out to resume deliberations. The following day,

after deliberating for approximately two hours, jurors submitted

a second note stating, "[w]e are deadlocked and find no way, at

all, to come to an agreement [emphasis omitted]." This time,

the judge found that jurors had engaged in due and thorough

deliberations, brought them into the courtroom, provided a full

Tuey-Rodriguez instruction, and sent them out to resume

deliberations. Approximately twenty-five minutes later, jurors

submitted a note stating, "[w]e cannot come to an agreement."

Because this note was the second communication following due and

thorough deliberation, the judge informed the parties that this

note constituted an "unambiguous communication" from jurors that

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they remained deadlocked, and he had "no alternative but to

declare a mistrial and discharge the jury." See G. L. c. 234A,

§ 68C (if jurors "return a second time without having agreed on

a verdict, they shall not be sent out again without their own

consent, unless they ask from the court some further explanation

of the law"). After a brief discussion with counsel, the

parties agreed with the judge. Before the judge could bring

them into the courtroom, jurors informed the court officer that

they had reached a verdict. Over the defendant's objection, the

judge accepted the verdicts. The defendant contends the judge

erred in doing so. We disagree.

"Judges must carefully avoid actions that might pressure

jurors into compromising their genuine views of the evidence."

Read v. Commonwealth, 495 Mass. 312, 322 (2025). To guard

against coercion of deadlocked jurors, "judges are statutorily

prohibited from ordering further deliberations by a deadlocked

jury that has twice reported being at an impasse after due and

thorough deliberation, unless they explicitly consent or seek

clarification on the law." Id. at 323. See G. L. c. 234A,

§ 68C. Here, after the judge found that they had engaged in

"due and thorough deliberation," G. L. c. 234A, § 68C, jurors

twice reported being at an impasse, but the judge ordered

further deliberations on only one of those occasions. While it

is true that the judge sent them back to deliberate a total of

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two times, the first time was not after "due and thorough

deliberation," G. L. c. 234A, § 68C, and therefore fell outside

the ambit of the governing statute and outside the potentially

coercive circumstances that the statute guards against. See

Read, 495 Mass. at 322-323. Thus, the judge did not violate the

statute.

3. Cross-examination of witness. Generally, "[a] trial

judge has broad discretion to limit cross-examination of a

witness." Commonwealth v. Mercado, 456 Mass. 198, 203 (2010).

"If a defendant believes that the judge improperly restrained

his cross-examination of a witness, the defendant must

demonstrate that the judge abused his discretion and that he was

prejudiced by such restraint [quotation omitted]." Commonwealth

v. Sealy, 467 Mass. 617, 624 (2014).

At trial, the Commonwealth's forensic video analyst

testified about an exhibit that consisted of a chronological

compilation of surveillance videos with map references

identifying the location of cameras on city streets. On appeal,

the defendant asserts that the judge abused his discretion in

precluding the defendant from cross-examining this witness about

whether tattoos were visible on the perpetrator's neck in

surveillance videos. We discern no error by the judge.

"Where the jury are capable of viewing video or

photographic evidence and drawing their own conclusions

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regarding what is depicted, a lay witness's testimony about the

content of the video or photographs is admissible only if it

would assist the jury in reaching more reliable conclusions."

Commonwealth v. Grier, 490 Mass. 455, 476 (2022). Here, because

the video analyst, who was not a percipient witness to the

events depicted in the video, was in no better position than

jurors to identify tattoos on the assailant's neck, the judge

did not abuse his discretion in precluding the defendant from

this line of inquiry. See Commonwealth v. Robertson, 489 Mass.

226, 236, cert. denied, 143 S. Ct. 498 (2022); Commonwealth v.

Wardsworth, 482 Mass. 454, 475-476 (2019) (noting that jurors

were able to view same surveillance footage that officers

watched as reason against admitting opinion testimony by

officers about footage). The forensic video analyst also did

not "possess[] any special familiarity with the defendant that

the jury lacked." Commonwealth v. Vacher, 469 Mass. 425, 442

(2014). Thus, the judge did not abuse his discretion.

Judgments affirmed.

By the Court (Desmond,
Grant & Hodgens, JJ.1),

Clerk

Entered: June 9, 2025.

1 The panelists are listed in order of seniority.

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