Commonwealth v. Resende , 476 Mass. 141 ( 2017 )

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SJC-11997
COMMONWEALTH vs. JAIME RESENDE.
Plymouth. September 7, 2016. - January 3, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Armed Home Invasion. Armed Assault with Intent to Rob.
Practice, Criminal, Duplicative convictions, Double
jeopardy, Verdict, Confrontation of witnesses, Argument by
prosecutor. Evidence, Statement of codefendant, Immunized
witness, Corroborative evidence. Constitutional Law,
Confrontation of witnesses, Double jeopardy.
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.
2
David Lewis, Anthony Mirenda, & Richard G. Baldwin, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
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
3
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
1
At trial, Newbury testified under a grant of immunity and
was a key witness against the defendant.
4
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
5
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.
6
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 (2013).
The defendant appealed from his convictions and filed a
motion for a new trial. His direct appeal was stayed pending
2
Kenston Scott, the codefendant, was convicted at the first
trial of murder in the first degree on a theory of felony-
murder, with the predicate felony of armed home invasion, and
possession of a firearm without a firearms identification card.
See Commonwealth v. Scott, 472 Mass. 815, 816 (2015). His
motion for a new trial was allowed with respect to the felony-
murder conviction, on the ground of improper jury instructions
on felony-murder. Scott pursued an interlocutory appeal to
challenge the judge's ruling that the evidence was sufficient to
support a finding of two separate and distinct assaults. Id. at
815. He maintained that he was entitled acquittal on the
felony-murder charge on the ground of insufficient evidence.
Id. at 817-818. We determined that the evidence was sufficient
for a jury to conclude that there were two independent assaults,
and we affirmed the judge's order denying the motion for a
finding of not guilty on the charge of felony-murder with armed
home invasion as the predicate felony. See id. at 823, 826.
7
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 (2011), S.C., 473 Mass. 131 (2015), cert. denied, 136 S.
Ct. 2467 (2016), and Commonwealth v. Kilburn, 438 Mass. 356, 361
(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
8
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
9
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
Constitution, as well as by the common and statutory law of the
Commonwealth, protects a defendant against multiple prosecutions
for the same offense. See Commonwealth v. Vanetzian, 350 Mass.
491, 493-494 (1966). "[C]ourts may not impose more than one
punishment for the same offense and prosecutors ordinarily may
not attempt to secure that punishment in more than one trial."
Brown v. Ohio, 432 U.S. 161, 165 (1977). See Commonwealth v.
Clemmons, 370 Mass. 288, 294-295 (1976).
Continuing jeopardy, on the other hand, exists where a
verdict is vacated, either through a direct appeal or by the
allowance of a motion for a new trial, and the defendant is
retried on that charge. Commonwealth v. Burke, 342 Mass. 144,
149 (1961). See Marshall v. Commonwealth, 463 Mass. 529, 538
(2012) ("the prohibition against double jeopardy . . . does not,
10
however, necessarily bar a retrial where a conviction has been
set aside on appeal" [citations omitted).
In the circumstances here, the judge properly determined
that double jeopardy did not prohibit retrial on the felony-
murder charge. The allowance of the defendant's motion for a
new trial placed him under continuing jeopardy during the
pendency of the prosecution, rather than placing him at risk of
double jeopardy, and the Commonwealth was entitled to a retrial.
Where some, but not all, of a defendant's convictions are
overturned on appeal, double jeopardy principles do not require
the Commonwealth to choose between a retrial on all of the
charges, including the verdicts that stand after appeal, or no
retrial at all. See Bell, 460 Mass. at 309-310; Commonwealth v.
Plunkett, 422 Mass. 634, 641 (1996). Here, the defendant's
felony-murder conviction was vacated and set aside, and his
independent conviction of armed assault with intent to rob was
not. Retrial on the felony-murder charge therefore did not
violate double jeopardy protections.
The defendant also argues that the felony convictions from
the first trial should be vacated as inconsistent with the
verdict of not guilty of felony-murder. In cases involving
verdicts returned by the same jury, "the rule is well
established in criminal cases that mere inconsistencies in
verdicts, one of which is an acquittal, will not render the
11
verdict of guilty erroneous even though such inconsistency may
have indicated the possibility of compromise on the part of the
jury." Commonwealth v. Scott, 355 Mass. 471, 475 (1969). While
legally inconsistent verdicts may not stand, factually
inconsistent verdicts may. Commonwealth v. Medeiros, 456 Mass.
52, 57-58 (2010).
"In limited circumstances," where the verdicts are legally
inconsistent, they must be set aside. Id. at 58. For instance,
verdicts of guilt involving mutually exclusive crimes, where it
is impossible for the Commonwealth to prove the elements of both
offenses with respect to a particular defendant, must be vacated
and set aside. See id. (conviction of one purported
coconspirator could not stand, where all other coconspirators
were acquitted at same trial); Commonwealth v. Carson, 349 Mass.
430, 434-436 (1965) (convictions of larceny of shares of stock
and larceny of proceeds from sale of same shares could not
stand).
On the other hand, factual inconsistencies in verdicts "do
not afford a ground for setting aside a conviction as long as
the evidence is sufficient to support a conviction on the count
on which the guilty verdict was reached." Commonwealth v.
Pease, 49 Mass. App. Ct. 539, 542 (2000). Verdicts are
factually inconsistent when, "considered together, [the
verdicts] suggest inconsistent interpretations of the evidence
12
presented at trial." Commonwealth v. Gonzalez, 452 Mass. 142,
151 n.8 (2008). See Commonwealth v. Hamilton, 411 Mass. 313,
323-324 (1991) (guilty verdict of armed robbery by means of
shotgun could stand, where same jury found defendant not guilty
of carrying dangerous weapon [same shotgun]).
Here, the defendant's conviction of armed home invasion is
neither legally nor factually inconsistent with the acquittal of
felony-murder. We do not agree with the defendant's position
that he was found "innocent" of this offense at his second
trial. The charge of armed home invasion, by itself, was not
before the jury at this trial. As for the charge of felony-
murder, the judge declined to instruct the jury on armed home
invasion as a predicate felony, because he concluded that the
armed home invasion had merged with the act of violence that led
to the victim's death, and that there was no separate assault
apart from that act. He observed that, "[M]y concern is that
under the case law, and in particular Commonwealth v. Bell, they
use the language that there must be a separate and distinct
assault. . . . I'm not going to submit armed home invasion to
the jury as a basis for a felony-murder verdict. . . . I do not
believe that it should be submitted to the jury under the
principles discussed in Commonwealth v. Bell."
As a result of the judge's ruling, the jury were not
instructed on the elements of armed home invasion, as a
13
predicate crime of felony-murder, and accordingly did not return
a verdict on this offense. The defendant's acquittal of felony-
murder was not, therefore, an implicit finding of not guilty of
armed home invasion.
Nor is the previous conviction of armed assault with intent
to rob legally or factually inconsistent with the acquittal on
the felony-murder indictment. "[T]here are circumstances in
which a jury may properly convict on the underlying felony and
yet acquit on felony-murder." Commonwealth v. Blackwell, 422
Mass. 294, 300 (1996). See Scott, 355 Mass. at 475 (robbery
conviction not legally inconsistent with felony-murder acquittal
even where victim died as result of injuries she suffered during
robbery).
At the defendant's second trial, the jury considered the
underlying felony of attempted robbery. The jury did not
consider the felony of armed assault with intent to rob. There
can be no "acquittal" of a charge never presented to a jury.
The defendant also argues that the verdicts are
inconsistent, and cannot stand, because two different juries
returned different verdicts based upon the same evidence. We do
not agree. As the Maryland Court of Appeals has commented, "the
rule of consistency loses much of its force in the case of
separate trials because different verdicts may well . . . [be]
due solely to the different composition of the two juries, . . .
14
[or] a variety of other circumstances, including a difference in
the proof offered at trial" (quotations omitted). State v.
Johnson, 367 Md. 418, 425-426 (2002), quoting Commonwealth v.
Byrd, 490 Pa. 544, 552 (1980). In Johnson, supra at 430, the
Maryland court affirmed verdicts returned by two different
juries, where, at a trial separate from his asserted
coconspirators, the defendant was found guilty of conspiracy,
even though all the purported coconspirators had been found not
guilty at their joint trial. In our view, this rationale is
compelling.
There are many reasons why the second jury could have found
the defendant not guilty of felony-murder other than because
they concluded that the Commonwealth failed to prove that the
defendant committed the predicate felony. See, e.g., Gonzalez,
452 Mass. at 151; Blackwell, 422 Mass. at 303-304 (Liacos, C.J.,
dissenting); Commonwealth v. Sherry, 386 Mass. 682, 699 (1982),
overruled on another ground by Commonwealth v. King, 445 Mass.
217 (2005). We reject the defendant's argument that fundamental
fairness requires this court to vacate the convictions of armed
home invasion and armed assault with intent to rob. The
defendant was found guilty of both offenses by a fair and
impartial jury in the first trial, and we would be speculating
as to what another jury found in a separate trial. The second
trial resulted in a felony-murder acquittal, and the defendant
15
was spared a sentence of life imprisonment. The second trial,
however, cannot spare the defendant from the consequences of
convictions properly decided by a different jury.
4. Remaining arguments.3 Having determined that the
defendant's felony convictions were not invalidated by the
subsequent felony-murder acquittal, we address the defendant's
claims of error in the first trial.
a. Bruton issue. The codefendant, Scott, did not testify,
but his statement to police was played for the jury. In that
statement, Scott said that, at the time of the shooting, he had
been present at the victim's house to purchase drugs. Scott
told police that, shortly after he arrived at the victim's
house, "some guys" ran around a corner and "shots were fired."
He said that he had had no involvement in a robbery and did not
kill anyone, but that he had been at "the wrong place, at the
wrong time." When pressed about his whereabouts immediately
prior to the shooting, Scott said that he went to his cousin's
house in Brockton, where he encountered two men he did not know.
The group sat around and smoked marijuana for approximately
3
The Commonwealth contends that the defendant waived his
appellate rights with respect to his other claims. According to
the Commonwealth, the waiver occurred when the defendant
withdrew his appeal from the denial, in part, of his motion for
a new trial. After carefully reviewing the docket entries, and
the status reports the defendant filed with the court, we
conclude that the record does not support the conclusion that
the defendant waived his appellate rights.
16
fifteen to thirty minutes. Scott then drove alone, in his own
vehicle, to the victim's house to purchase drugs. The men who
had been at his cousin's house left in a different vehicle.
The defendant contends that the introduction of Scott's
statement violated his rights, under the Sixth and Fourteenth
Amendments to the United States Constitution, to confront and
cross-examine the witnesses against him. See Bruton v. United
States, 391 U.S. 123, 126 (1968). The United States Supreme
Court held in that case that the admission of a nontestifying
codefendant's statement, naming the defendant as a participant
in the crime, violated the defendant's right to confrontation
under the Sixth Amendment. Id. at 123-124, 126. The Court
observed that testimony that expressly inculpates a defendant is
so "powerfully incriminating" that it cannot be cured by a
limiting instruction to the effect that the jury may only
consider the statement as evidence against the codefendant. Id.
at 135-136. See Commonwealth v. Rivera, 464 Mass. 56, 69, cert.
denied, 133 S. Ct. 2828 (2013) ("[o]ur considerations of the
Bruton rule mirror the Federal standard").
The United States Supreme Court subsequently has extended
its holding in the Bruton case to prohibit the introduction of a
nontestifying codefendant's statement that directly inculpates a
defendant even where the defendant's name is not mentioned.
Gray v. Maryland, 523 U.S. 185, 192 (1998). See Commonwealth v.
17
Bacigalupo, 455 Mass. 485, 492 (2009) (introduction of
nontestifying codefendant's statement that his "friend" was
present at shooting was sufficiently direct reference to
defendant to violate his right to confrontation, notwithstanding
limiting instruction).
Where a nontestifying codefendant's statement does not
inculpate a defendant directly, but does inculpate the defendant
when combined with other evidence, a limiting instruction may be
sufficient to cure the prejudice. Rivera, 464 Mass. at 70 (" The
law is clear, however, that inferential incrimination can be
properly cured by a limiting instruction"). In that case, we
concluded that, where the judge had given an appropriate
limiting instruction, there was no error in the admission of a
nontestifying codefendant's redacted statement that did not
directly reference the defendant, but incriminated him "only to
the extent that the jury accepted other evidence against him
that places him at the scene [of the crime]." Id. at 70-71.
Similarly, a nontestifying codefendant's statement that "other
members" of the codefendant's gang had been involved with a
killing, accompanied by a limiting instruction, did not violate
the defendant's right to confrontation because the statement did
not refer directly to him. Commonwealth v. Vasquez, 462 Mass.
827, 843-844 (2009).
18
In this case, as in Rivera, 446 Mass. at 70-71, Scott's
statement was not so powerfully incriminating as to require its
exclusion from the joint trial. The statement was probative and
significant to the Commonwealth's case because it corroborated
Newbury's testimony that the defendant, Scott, and others met in
Brockton prior to the robbery; that Scott did not know the other
individuals; that they all smoked marijuana; and that the "two
other guys" left the house and drove off in different vehicles.
Scott's statement did not directly implicate the defendant or
name him, expressly or by implication, as one of the "guys" who
ran around the corner and started shooting the victim. Scott
did not tell police, at any later point in his interview, that
the unknown men gathered at his cousin's house were the same
individuals who "came around the corner and started shooting."
In sum, the statement tended to inculpate the defendant only
when considered with other, properly introduced evidence. See
Vasquez, 462 Mass. at 843-844.
The defendant objected to the use of Scott's statement as
corroboration of Newbury's testimony. Defense counsel argued
that "later . . . the district attorney [would argue] that . . .
Scott['s statement] is corroborating the testimony of Newbury
and putting these other guys who would be [the defendant] and
his brother at a meeting with . . . Scott prior to this
incident." The judge commented that it would be impermissible
19
for the jury to consider the statement for such a purpose, and
the prosecutor agreed that he would not make use of the
statement to corroborate Newbury's testimony. Counsel replied,
"Thank you." He did not later object when the Commonwealth
introduced the statement, and he did not request a limiting
instruction. In his closing argument, the prosecutor did not
refer to Scott's statement as corroborative evidence.
Although the prosecutor and defense counsel agreed at that
sidebar hearing that Scott's statement could not be used against
the defendant, the judge did not provide the jury with any
limiting instruction on its use. This was error. The judge
should have instructed the jury that they could not consider
Scott's statement as evidence against the defendant. See
Rivera, 464 Mass. at 68, 71; Vasquez, 462 Mass. at 841, 844.
Because the defendant did not object at trial and did not
request a limiting instruction, we review for a substantial risk
of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass.
556, 563-564 (1967).
We conclude that the improper admission of Scott's
statement resulted in no such risk. The statement was
cumulative of other, properly admitted evidence. See
Commonwealth v. MacKenzie, 413 Mass. 498, 510 (1992). There was
other testimony that multiple individuals had been at the
victim's house when the shooting occurred. Additional, properly
20
admitted evidence, including Newbury's testimony and cellular
telephone records, also suggested that the defendant had been at
the scene of the shooting.
b. Testimony of immunized witness. The defendant argues
further that his conviction must be overturned because the
Commonwealth did not introduce evidence to corroborate the
testimony of its immunized witness, Newbury. Pursuant to G. L.
c. 233, § 20I, "No defendant in any criminal proceeding shall be
convicted solely on the testimony of, or the evidence produced
by, a person granted immunity." See Commonwealth v. Fernandes,
425 Mass. 357, 360 (1997), quoting Commonwealth v. Scanlon, 373
Mass. 11, 19 (1977) ("We have said that to provide the requisite
credibility, 'there must be some evidence in support of the
testimony of an immunized witness on at least one element of
proof essential to convict the defendant'"). The corroborating
evidence need not connect the defendant to the crime, but must
support at least one element of the crime. See Fernandes, supra
at 359; Commonwealth v. DeBrosky, 363 Mass. 718, 730 (1973).
Contrary to the defendant's assertions, the jury heard
sufficient evidence to corroborate Newbury's testimony about the
events of the night of the shooting. The victim was found dead,
immediately inside his front doorway, with a gun on the floor
between his legs. Police found spent bullets, fired from two
different guns, near the door. This evidence could support an
21
inference that the defendant's accomplice, Scott, was armed with
a firearm and assaulted the victim by shooting him with it,
satisfying two elements of the offenses of armed home invasion
and armed assault with intent to rob. See G. L. c. 265, §§ 17,
18C. Investigators also noted damage to the front door of the
victim's house, suggesting that an intruder struggled to push
his way into the house, satisfying one element of armed home
invasion. See G. L. c. 265, § 18C.
The defendant argues that the judge erred by not
instructing the jury that they could not rely on the testimony
of the immunized witness unless they first found that other
evidence supported at least one element of the crime. The
defendant did not request such an instruction, and did not
object to its absence following the judge's charge. Therefore,
we review for a substantial risk of a miscarriage of justice.
Freeman, 352 Mass. at 563-564.
A judge is not required to instruct the jury that they
cannot convict a defendant solely on the testimony of a
particular immunized witness. See Commonwealth v. Brousseau,
421 Mass. 647, 655 (1996). "Rather we consider whether 'the
charge, as a whole, adequately covers the issue.'" Commonwealth
v. Dyous, 436 Mass. 719, 727 (2002), quoting Commonwealth v.
Anderson, 396 Mass. 306, 316 (1985). In formulating an
immunized witness instruction, a judge may instruct pursuant to
22
G. L. c. 233, § 20I, without naming a particular witness, that
immunized witness testimony cannot serve as the sole basis for
conviction. Dyous, supra. See Commonwealth v. Vacher, 469
Mass. 425, 440-441 (2014).4
In this case, the failure to provide an instruction that
immunized witness testimony cannot serve as the sole basis for
conviction did not constitute a substantial risk of a
miscarriage of justice. The Commonwealth produced other
evidence to corroborate Newbury's testimony concerning the
defendant's participation in the botched robbery. Defense
counsel cross-examined Newbury regarding the grant of immunity,
and argued that the government handed this "shadowy figure" a
"get-out-of-jail card" in exchange for "hang[ing] this on a 21-
year-old kid [his client]." See Brousseau, 421 Mass. at 654
("defense counsel vigorously cross-examined [the witness] and
vigorously argued to [the] jury her lack of credibility"
[citation omitted]). The judge's charge included general
instructions regarding witness credibility, witness bias, and a
4
In contrast, G. L. c. 277, § 63, requires that an
indictment or complaint filed more than twenty-seven years after
the commission of a rape of child offense "be supported by
independent evidence that corroborates the victim's
allegations." The corroboration must relate to the specific
criminal act of which the defendant stands accused.
Commonwealth v. White, 475 Mass. 724, 738 (2016). In a case
brought under G. L. c. 277, § 63, a judge is required to
instruct the jury "regarding the Commonwealth's obligation to
provide independent evidence that related to the specific
criminal acts at issue . . . ." White, supra at 742.
23
specific instruction that the jury could consider a grant of
immunity in assessing witness credibility. Accordingly, the
jury heard sufficient evidence to corroborate Newbury, and were
instructed properly that the witness's testimony should be
scrutinized in light of his grant of immunity.
c. Prosecutor's closing argument. The defendant maintains
also that his convictions must be overturned because, in
closing, the prosecutor made arguments that were not supported
by the evidence. The defendant challenges, in particular, the
prosecutor's statements that the defendant knew that the victim
had drugs and money at his house because the victim entertained
guests there, and that the defendant had had to recruit Scott to
help with the robbery because he needed someone that the victim
would not recognize, and the victim would have recognized the
defendant. The defendant did not object to either of these
statements at trial, so we review for a substantial risk of a
miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13
(1999).
The prosecutor's reference to the defendant knowing that
the victim had large amounts of cash and drugs at his house
because the victim frequently hosted guests was a permissible
inference from the evidence. The victim's girl friend testified
that there was a large amount of money in the house, and that
the victim frequently entertained friends in the basement.
24
Newbury's testimony that the defendant called Newbury to tell
him about the plan to rob the victim of money and drugs supports
an inference that the defendant knew the victim had money and
drugs in his house.
The prosecutor also told the jury, "See, [the defendant] is
a Brockton guy . . . . They're going to rob a Brockton guy, a
Cape Verde guy. He needs someone to do the job because . . . he
was concerned that he might be recognized." This statement was
not supported by any evidence at trial and should not have been
made. See Commonwealth v. Colon, 449 Mass. 207, 224, cert.
denied, 552 U.S. 1079 (2007). While there was testimony that
both men lived in Brockton, there was no testimony concerning
any prior relationship or a shared ethnic heritage.5
Nonetheless, the judge properly instructed the jury that closing
arguments are not "a substitute for the evidence," and that the
jury had a duty to decide the case based on the testimony and
exhibits entered in evidence. Commonwealth v. Benjamin, 399
Mass. 220, 223-224 & n.1 (1987), overruled on another ground by
Commonwealth v. Paulding, 438 Mass. 1 (2002).
The defendant argues that the prosecutor's statement that
the defendant chose Scott to assist in the robbery was
particularly troubling because it provided a motive for the
5
The record is silent as to the ethnicity of both the
defendant and the victim.
25
defendant to have involved Scott, and supported the
Commonwealth's argument that the defendant was the mastermind.
Although the prosecutor's remark was improper, it did not create
a substantial risk of a miscarriage of justice. Motive is a
collateral issue, and an impermissible inference with respect to
motive does not necessarily amount to reversible error. See
Commonwealth v. Perez, 444 Mass. 143, 152 (2005). Although the
tenor of the remark was particularly unfortunate, and the remark
should not have been made, it was a single statement made in the
context of an otherwise proper closing argument.
Judgments affirmed.