Commonwealth v. Resende

Decision Date03 January 2017
Docket NumberSJC–11997.
Citation65 N.E.3d 1148,476 Mass. 141
Parties COMMONWEALTH v. Jaime RESENDE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jonathan Shapiro, Boston (Molly Gayle Campbell with him) for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

David Lewis, Anthony Mirenda, & Richard G. Baldwin, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.

GAZIANO, J.

In 2010, a Superior Court jury convicted the defendant of murder in the first degree on a theory of felony-murder for his role in the shooting death of Nelson Pina. The jury also convicted him of armed home invasion and armed assault with intent to rob. The defendant filed a motion for a new trial, arguing, among other things, that the judge should have provided the jury with a felony-murder merger instruction. The trial judge, who heard the motion, determined that a new trial was necessary on the felony-murder conviction, but did not disturb the convictions of armed home invasion and armed assault with intent to rob. At his 2015 retrial, this time on the single charge of felony-murder, a second jury found the defendant not guilty.

In this appeal, the defendant challenges the convictions at his first trial of armed home invasion and armed assault with intent to rob. He argues, on double jeopardy grounds, that he cannot be guilty of those charges because the second jury acquitted him of felony-murder, predicated upon the same underlying felonies. He also argues that the felony convictions should not stand because the admission of an incriminating statement from a nontestifying codefendant violated his constitutional right to confront the witnesses against him; the jury were permitted to convict based solely on the uncorroborated testimony of an immunized witness; and the prosecutor's closing argument contained statements that were unsupported by the record. For the reasons that follow, we affirm the defendant's convictions.

1. Facts. We recite the facts that the jury could have found at the first trial. In November, 2006, the defendant devised a plan to go to Nelson Pina's Brockton residence and rob him of cash and drugs. The defendant recruited Vernon Newbury, a person he knew from the sale of illegal drugs, to assist with the robbery. The defendant also asked Newbury to find others to assist in the commission of the robbery. Newbury, in turn, contacted Kenston Scott, his cousin, who agreed to help rob Pina.1

On the night of November 16, 2006, the defendant, Scott, Newbury, Eric Davis, and the defendant's brother all met at the house of another of Newbury's cousins in Brockton. They smoked marijuana and discussed the robbery. After ten to fifteen minutes, the group drove toward the victim's house in three vehicles. The defendant drove his own automobile with his brother, Scott drove in another vehicle with Davis, and Newbury drove alone in a third vehicle, but stopped before he reached the victim's house.

When they arrived at the victim's house, Scott raised the hood of his vehicle, turned on its emergency flashing lights, and went to the victim's front door. Julia Codling, the victim's girl friend, went to the door with the victim. Through the closed door, Scott told them that his automobile had broken down and asked to borrow a telephone to call for help. Codling did not recognize Scott, describing him only as a "black male with a hat with designs." The victim got his dog from the basement, then opened the front door and gave Scott a cordless telephone. Scott began walking back to his vehicle carrying the telephone. As Scott approached his vehicle, another man got out and Scott said, "He's here."

Scott walked back toward the house. Coddling heard a struggle at the front door, followed by an exchange of four gunshots. She telephoned 911 to report that shots had been fired, and police arrived shortly thereafter.

The defendant drove from the scene, passing Newbury on the way. Scott was wounded, but he left the scene, leaving his vehicle behind. Newbury met the defendant after the incident. The defendant initially told Newbury, "Things got fucked up and shots rang out." Newbury drove past the victim's house and saw Scott's vehicle with its hood up and lights flashing. After that, Newbury drove to the defendant's brother's house in Quincy, where he reconvened with the defendant, the defendant's brother, and Scott, who was bleeding.

When police arrived, they found the victim lying on the floor near the entrance, dead. The front door was damaged, and there were spent projectiles, fired from two different guns, near the doorway. In the basement, police found $48,000 in cash and two containers with small amounts of marijuana, as well as a handwritten ledger they believed was a record of drug transactions.

During the course of the investigation, police obtained records showing a call between cellular telephones associated with Scott and the defendant. The police also obtained telephone records showing calls between the telephones belonging to the defendant and Newbury, in the hours immediately before and after the shooting. They also determined that a baseball hat found at the scene and a bloody sweatshirt found nearby each contained Scott's deoxyribonucleic acid (DNA). Police spoke with a witness in the neighborhood who said that there were two individuals outside the victim's house at the time of the shooting. Several months later, police spoke with Scott, who told them that he had been at the victim's house to purchase drugs on the night of the shooting, but that someone else had done the shooting.

2. Prior proceedings. A grand jury returned indictments charging the defendant with murder in the first degree, armed home invasion, and armed assault with intent to rob. At the defendant's first trial (a joint trial with codefendant Scott), the Commonwealth proceeded on theories of murder in the first degree by deliberate premeditation, and felony-murder with armed home invasion and armed robbery or attempted armed robbery as the predicate felonies. The jury found the defendant guilty of felony-murder with the predicate felony of armed home invasion; armed home invasion; and armed assault with intent to rob.2 At sentencing, the judge dismissed the conviction of armed home invasion as duplicative. See Commonwealth v. Alcequiecz, 465 Mass. 557, 558, 989 N.E.2d 473 (2013).

The defendant appealed from his convictions and filed a motion for a new trial. His direct appeal was stayed pending resolution of the motion for a new trial. The trial judge concluded that the jury instructions on felony-murder were improper because they did not contain a required merger instruction pursuant to Commonwealth v. Bell, 460 Mass. 294, 302–303, 951 N.E.2d 35 (2011), S.C., 473 Mass. 131, 39 N.E.3d 1190 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 2467, 195 L.Ed.2d 806 (2016), and Commonwealth v. Kilburn, 438 Mass. 356, 361, 780 N.E.2d 1237 (2003), and allowed the defendant's motion for a new trial on that ground. He denied the other claims. The defendant appealed from the denial of the other claims, but later withdrew that appeal. He then filed a motion to dismiss in the Superior Court, asserting that a new trial would violate the protections against double jeopardy. A different Superior Court judge denied that motion.

At the defendant's second trial, the Commonwealth proceeded on theories of murder by means of deliberate premeditation, felony-murder predicated on the felony of armed home invasion, attempted armed robbery, and unlawful possession of a firearm. At the close of the evidence, the judge declined to instruct the jury on deliberate premeditation, felony-murder predicated on armed home invasion, and felony-murder in the second degree predicated on unlawful possession of a firearm. The judge instructed on felony-murder in the first degree with the predicate offenses of attempted armed robbery and attempted unarmed robbery. The jury found the defendant not guilty on the indictment charging murder in the first degree.

The defendant filed a motion for release from unlawful restraint, arguing that the felony convictions from his first trial should be overturned because the second jury had acquitted him of felony-murder. That motion was denied. The Commonwealth moved to reinstate the vacated conviction of armed home invasion, on the ground that it was no longer duplicative. That motion ultimately was allowed. The defendant appealed from the denial of his motion for release from unlawful restraint, the allowance of the Commonwealth's motion to reinstate the conviction of armed home invasion, and the initial convictions of armed home invasion and armed assault with intent to rob. The appeals were consolidated and we allowed the defendant's motion for direct appellate review.

3. Double jeopardy and inconsistent verdicts. The defendant contends that the convictions of armed home invasion and armed assault with intent to rob must be vacated because they violate the protection against double jeopardy. In the defendant's view, the Commonwealth had two options after the first trial judge allowed the motion for a new trial on the murder charge. First, the Commonwealth could have declined to prosecute the defendant for murder, thereby preserving the convictions of armed home invasion and armed assault with intent to rob. In the alternative, the Commonwealth could have elected to retry him on all of the charges from the first trial. The defendant argues that, as a result of the acquittal on the felony-murder charge, he has been deemed innocent of all of the felony charges, because they involved the same acts that underlay the murder indictment.

The defendant's appeal raises issues of double jeopardy and inconsistent verdicts. The prohibition against double jeopardy, provided by the Fifth Amendment to the United States...

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