65 N.E.3d 1148
Mass.2017Background
- In 2010 a jury convicted Resende of first‑degree murder (felony‑murder), armed home invasion, and armed assault with intent to rob for the November 2006 killing of Nelson Pina; the armed home invasion conviction was later dismissed as duplicative at sentencing.
- The trial judge granted Resende a new trial on the felony‑murder conviction based on erroneous felony‑murder jury instructions (failure to give a merger instruction under Bell/Kilburn), but left the other felony convictions intact.
- At a 2015 retrial on murder (felony‑murder and related theories) the jury acquitted Resende of first‑degree murder.
- Resende appealed the remaining convictions for armed home invasion and armed assault with intent to rob, arguing double jeopardy/inconsistent verdicts, Bruton confrontation error from a nontestifying codefendant’s statement, lack of corroboration for an immunized witness, and improper prosecutorial argument.
- The Supreme Judicial Court affirmed the convictions, holding retrial on murder did not invalidate the earlier felony convictions, any Bruton error was harmless, the immunized witness was sufficiently corroborated, and the prosecutor’s improper remark did not create a substantial risk of a miscarriage of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy / inconsistent verdicts | Commonwealth: retrial on vacated murder verdict was permitted; earlier felony convictions remain if supported by evidence | Resende: acquittal on felony‑murder at retrial means felony convictions predicated on same acts must fall under double jeopardy/inconsistency principles | Held: No double jeopardy; retrial was permissible and acquittal on murder did not implicitly negate distinct earlier felony convictions (different juries, different instructions) |
| Bruton / Confrontation Clause | Commonwealth: codefendant’s out‑of‑court statement was non‑inculpatory or only inferential, and limiting instruction sufficed | Resende: admission of Scott’s recorded statement (nontestifying codefendant) violated Confrontation Clause and required reversal | Held: Statement did not directly inculpate Resende; although judge should have given a limiting instruction, error was harmless because the statement was cumulative of other evidence |
| Corroboration of immunized witness (G. L. c. 233, § 20I) | Commonwealth: Newbury’s testimony was corroborated by physical and circumstantial evidence at scene | Resende: conviction rested solely on immunized witness testimony and lacked required corroboration | Held: Sufficient corroboration existed (victim’s position, spent rounds from two guns, door damage, telephone/cell records); absence of a specific §20I instruction was not reversible error |
| Prosecutorial misconduct in closing | Commonwealth: arguments were reasonable inferences from the evidence | Resende: prosecutor made unsupported statements (about recruiting Scott because victim would recognize Resende; shared ethnicity) that prejudiced jury | Held: One remark (about ethnicity/need for an unfamiliar accomplice) was unsupported and improper, but was isolated and did not create substantial risk of miscarriage of justice; verdicts stand |
Key Cases Cited
- Commonwealth v. Bell, 460 Mass. 294 (merger instruction required for certain felony‑murder theories)
- Commonwealth v. Kilburn, 438 Mass. 356 (merger principles in felony‑murder context)
- Brown v. Ohio, 432 U.S. 161 (double jeopardy bars multiple punishments for same offense)
- Bruton v. United States, 391 U.S. 123 (admission of nontestifying codefendant’s statement that directly inculpates defendant violates Confrontation Clause)
- Gray v. Maryland, 523 U.S. 185 (Bruton extended to statements that reference defendant without name)
- Commonwealth v. Rivera, 464 Mass. 56 (inferential inculpation may be cured by limiting instruction)
- Commonwealth v. Blackwell, 422 Mass. 294 (jury may convict on underlying felony yet acquit on felony‑murder)
- Commonwealth v. Fernandes, 425 Mass. 357 (corroboration requirement for testimony of an immunized witness)
- Commonwealth v. Freeman, 352 Mass. 556 (standard for reviewing unpreserved error for miscarriage of justice)