Commonwealth v. Davis (Lawyers Weekly No. 11-123-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-953 Appeals Court COMMONWEALTH vs. CLOVICEL DAVIS. No. 13-P-953. Essex. January 13, 2015. – August 28, 2015. Present: Trainor, Vuono, & Hanlon, JJ. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy, Duplicative convictions, Instructions to jury, Argument by prosecutor. Robbery. Identification. Indictments found and returned in the Superior Court Department on October 7, 2009. The cases were tried before Timothy Q. Feeley, J. Cathryn A. Neaves for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. VUONO, J. Following a joint trial in the Superior Court, a jury convicted the defendant, Clovicel Davis, and his brother, Curtis Davis, of two counts of unarmed robbery, in violation of G. L. c. 265, § 19(b).[1] Clovicel has appealed, claiming that his convictions are duplicative and, as such, violate the double jeopardy clause of the Fifth Amendment to the United States Constitution.[2] He also asserts error in the judge’s jury instruction on identification and the prosecutor’s closing argument. For the reasons that follow, we conclude there was no error at trial, but we agree with the defendant that the convictions are duplicative and that one of the indictments must be dismissed, and the case remanded to the Superior Court for resentencing on the remaining conviction. Background. On September 10, 2009, at about 4:00 A.M., Bruno Correa was working the night shift as a clerk at the Plaza Motel located on Route 1 in Peabody when he was robbed by two men whom he later identified as the defendants. Upon entering the motel lobby, Curtis feigned interest in renting a room and approached the counter. Once he was close to Correa he demanded money. Correa opened the cash drawer from which Curtis took an envelope containing $ 396. Curtis then attempted to hustle Correa out of the lobby, while Clovicel, who had remained near the door, snatched a gold chain from Correa’s neck and told Correa to give him his watch. As Correa began to remove the watch, he seized an opportunity to escape and ran to a nearby truck stop from which the police were called. Meanwhile, Curtis and Clovicel had driven away in a light colored sedan. A short time later, Curtis and Clovicel were stopped by the police in connection with an unrelated investigation. Because they matched the description of the robbers […]