Commonwealth v. Resende (Lawyers Weekly No. 10-003-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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. 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 […]