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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 felonymurder 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 felonymurder, 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 felonymurder 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 felonymurder 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 felonymurder, 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 felonymurder 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.