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Commonwealth v. Resende

Supreme Judicial Court of Massachusetts, Plymouth

January 3, 2017


          Heard: September 7, 2016.

         Indictments found and returned in the Superior Court Department on September 21, 2007. The cases were tried before Richard J. Chin, J., and a motion for a new trial was heard by him; certain of the cases were retried before Charles J. Hely, J.; and motions to reinstate a conviction and for release from unlawful restraint were heard by Richard J. Chin, J.

         The Supreme Judicial Court granted an application for direct appellate review.

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

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

          David Lewis, Anthony Mirenda, & Richard G. Baldwin, 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 ...

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