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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 

 

1 Because the defendants have the same surname, we use their 

first names to avoid confusion.
2

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 

 

2 Although the defendant did not move to dismiss one of the 

two indictments on the ground that it was duplicative, review is 

appropriate because multiple punishments for the same offense 

create a substantial risk of a miscarriage of justice. See

Commonwealth v. Donovan, 395 Mass. 20, 27-28 (1985).
3

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 that Correa had 

provided, albeit in a general way, a so-called showup 

identification with Correa was arranged. Correa immediately

identified Curtis, but did not readily identify Clovicel.

3 The 

defendants were arrested, and during a subsequent search of 

their vehicle the police found loose currency strewn throughout 

which totaled $366, an amount close to that which had been taken 

from the motel's cash drawer. The police also found a gold 

chain, which Correa identified at trial as the chain that had 

been ripped from his neck during the robbery. Not found in the 

vehicle was the envelope that held the money from the motel, 

which was the type used for bank deposits and bore the name of a 

bank and Correa's handwritten notations regarding payments for 

rooms. Nor did the police find two pieces of clothing: a black 

hat and a white shirt which, as described by Correa, Curtis was 

wearing at the time of the robbery.

 

3 The testimony regarding the amount of time it took for 

Correa to identify Clovicel at the scene varied from "fifty

seconds" to "three to five minutes." At trial, Correa could not 

identify Clovicel. He testified, however, that he was one 

hundred percent sure that he correctly identified Clovicel on 

the night of the robbery and he identified Clovicel from a 

booking photograph taken in connection with Clovicel's arrest.
4

A grand jury returned identical indictments against Curtis 

and Clovicel charging each of them with two counts of unarmed 

robbery. The first count alleged that Clovicel "did by force 

and violence, or by assault and putting in fear, rob or steal 

from Bruno Correa, or from his immediate control, U[nited] 

S[tates] [c]urrency, the property of the Plaza Hotel." The 

second count alleged Clovicel "did by force and violence, or by 

assault and putting in fear, rob or steal from Bruno Correa, or 

from his immediate control, a gold chain necklace, the property 

of the [sic] Bruno Correa." The Commonwealth's theory at trial 

was that Clovicel was guilty as an aider and abettor on the 

first count and as a principal on the second count. The judge 

adopted this theory of culpability at sentencing and imposed a 

six to eight year prison sentence on count two and three years 

of probation on count one, to be served on and after the term of 

incarceration imposed on count two. 

1. Double jeopardy.

4 The defendant contends that although 

two items (money and a gold chain) were taken during the course 

 

4 "The double jeopardy clause of the Fifth Amendment to the 

United States Constitution protects against three distinct 

abuses: a second prosecution for the same offense after 

acquittal; a second prosecution for the same offense after 

conviction; and multiple punishments for the same offense." 

Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 459-460 (2010), 

quoting from Commonwealth v. Crawford, 430 Mass. 683, 686 

(2000). See Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993). 

The defendant's contention concerns "the third category of 

protection" and "requires us to determine whether the 
5

of the robbery, there was only one victim and therefore, only 

one indictment for unarmed robbery was proper. The unarmed 

robbery statute states, in relevant part:

"Whoever, not being armed with a dangerous weapon, by force 

and violence, or by assault and putting in fear, robs, 

steals or takes from the person of another, or from his 

immediate control, money or other property which may be the 

subject of larceny, shall be punished by imprisonment in 

the state prison for life or for any term of years."

G. L. c. 265, § 19(b), as amended by St. 1981, c. 678, § 4. As 

the Commonwealth acknowledges, "the teaching of our cases is 

that, where the intent of the Legislature in the enactment of a 

criminal statute is primarily to protect the safety of 

individuals, as opposed to one's possessory interest in 

property, the number of victims determines the number of units 

of legitimate prosecution." Commonwealth v. Antonmarchi, 70 

Mass. App. Ct. 463, 466 (2007), quoting from Commonwealth v. 

Melton, 50 Mass. App. Ct. 637, 643 (2001). Thus, the 

appropriate unit of prosecution for robbery is the person 

assaulted and robbed. See Commonwealth v. Donovan, 395 Mass. 

20, 30 (1985). See also Commonwealth v. Levia, 385 Mass. 345,

351 (1982) (conviction on two indictments proper where robbery 

involved two victims because "the 'offense' is against the 

 

Legislature intended to authorize imposition of multiple 

punishments for concurrent violations of the same statute 

arising out of a single transaction." See Commonwealth v. 

Flanagan, supra, quoting from Commonwealth v. Crawford, supra.
6

person assaulted, and not against the entity that owns or 

possesses the property taken").

The Commonwealth nevertheless maintains that, in this case,

two convictions of unarmed robbery with the imposition of 

consecutive sentences do not violate the defendant's right to be 

free from double jeopardy because two distinct robberies

occurred, each based on separate applications of force. See 

Commonwealth v. Weiner, 255 Mass. 506, 509 (1926) ("[t]he 

essence of robbery is the exertion of force, actual or 

constructive, against another in order to take personal property 

of any value whatsoever, with the intention of stealing it"). 

To support its contention, the Commonwealth cites Commonwealth

v. Tarrant, 14 Mass. App. Ct. 1020 (1982), and Commonwealth v. 

Vega, 36 Mass. App. Ct. 635 (1994). Both cases are 

distinguishable.

 In Tarrant, we held that double jeopardy did not bar the 

prosecution of two robberies from the same victim during the 

course of one criminal episode. However, the facts demonstrated 

that two discrete robberies had occurred. In that case, the 

victim was leaving her apartment building when the defendant 

forced her back into the foyer, held a knife to her and demanded 

money. After the victim gave the defendant about thirteen 

dollars, he ordered her, by knife point, to take him to her 

apartment, which she did. The defendant then locked the victim 
7

in the bathroom, stole various items, and destroyed others. On 

the basis of this evidence, the defendant was convicted of two 

armed robberies. On appeal, he sought to dismiss one of the 

convictions on the ground that it was duplicative. In rejecting 

this claim, we concluded that "[a]lthough the taking of the 

victim's money and property happened during a continuous period, 

the offenses occurred in two different places and under 

different circumstances," and, therefore, were not "so closely 

related in fact as to constitute in substance but a single 

crime." Id. at 1021 (citation omitted).

Here, by contrast, the offenses occurred in the same 

location at virtually the same time under the same 

circumstances. While it is true, as the Commonwealth observes, 

that Correa testified that he became increasingly afraid after 

Curtis took the money, the escalation of Correa's fear does not 

justify two convictions of unarmed robbery.5 More fundamentally, 

 

5 Indeed, as the Commonwealth acknowledged at oral argument, 

had Clovicel succeeded in taking Correa's watch, a third charge 

of unarmed robbery would not have been warranted. See 

Commonwealth v. Vick, 454 Mass. 418, 435 (2009). In 

circumstances where, as here, there are multiple counts of the 

same offense "multiple convictions and sentences are permissible 

only where each conviction is premised on a distinct criminal 

act, unless the Legislature has explicitly authorized cumulative 

punishments." As G. L. c. 265, § 19(b), does not authorize 

cumulative punishments, and for the reasons we have noted, the 

criminal acts in question are not "distinct"; thus, there is no 

basis for multiple convictions. Accord Commonwealth v. Traylor,

472 Mass. 260, 269-270 (2015).
8

the evidence does not support the Commonwealth's contention that 

the taking of the gold chain by Clovicel constitutes a separate 

application of force where the same force and threats were 

exerted throughout the encounter to facilitate the taking of the 

money and the gold chain. See Commonwealth v. Santos, 440 Mass. 

281, 292 (2003). See also Commonwealth v. LeBeau, 451 Mass. 

244, 262 (2008) (multiple "alleged acts were part of a single 

crime scheme").

The Commonwealth's reliance on Commonwealth v. Vega, supra, 

is also misplaced. There, the defendant was convicted of three 

counts of rape based on evidence demonstrating two incidents of

vaginal penetration and one incident of anal penetration. On 

appeal, the defendant maintained that the judge erred in 

imposing successive sentences because all three rapes occurred 

in the course of one criminal episode. In rejecting this claim, 

we observed that the victim must have experienced each 

penetration as a separate crime, "especially when . . . the acts 

differed in kind," and concluded that "[t]he realities of the 

multiple attacks on the victim warranted -- although they did 

not require -- multiple indictments and successive sentences." 

Id. at 641. In the present case, the taking of the money and 

the taking of the property did not differ in kind. Instead, the 

acts were rather part of one seamless, albeit escalating, 

criminal episode. Because the two actions were similar in 
9

nature and, as previously discussed, so closely connected in 

time and space, we repeat our conclusion that this is not a case 

where multiple indictments were warranted. 

2. Instruction on eyewitness identification. The judge 

held a precharge conference during which defense counsel 

requested that the judge inform the jury that the issue of 

identification is "the most important issue in this case." The 

judge declined to do so. Passing on whether the issue was 

properly preserved with a specific postcharge objection, we 

discern no error.6 The instruction adhered to that suggested in 

Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979).7 See 

also Commonwealth v. Franklin, 465 Mass. 895, 912-914 (2013). 

The judge emphasized to the jury that the Commonwealth has the 

burden of proving identity beyond a reasonable doubt numerous 

 

6 At the conclusion of the charge to the jury, the judge 

invited comment from counsel. Clovicel's lawyer stated: "To 

the extent the court did not give the requested instructions or 

the request for changes to the instructions that I proposed to 

the court I would object. But as to the instructions the court 

gave, nothing different." The Commonwealth argues that this 

objection was not sufficiently specific to alert the judge to 

the basis of the objection. While we find it highly unlikely 

that the judge would not have recalled the reasons for the 

objection given by trial counsel during the charge conference, 

we need not determine which standard of review applies as there 

was no error.

7 The Supreme Judicial Court recently announced changes to 

the Rodriguez instruction based on evolving knowledge about 

eyewitness identifications. See Commonwealth v. Gomes, 470 

Mass. 352, 379-388 (2015). However, those changes are not 

retroactive, and therefore, do not apply here. See id. at 376.
10

times during his charge. More was not required. See 

Commonwealth v. Bresilla, 470 Mass. 422, 440 (2015).

3. Prosecutor's closing argument. Finally, the defendant 

argues that, the prosecutor's suggestion in closing argument 

that the defendants had discarded the black hat, the white 

shirt, and the envelope that contained the money lacked 

evidentiary support. The text of the challenged statement is as 

follows:

"And I would suggest to you, the lack of the hat, the lack 

of the money envelope and whether or not there is a 

different white tee shirt, those are the things that would 

be the most immediately identifiable. And I would suggest 

there's a strong possibility that as they traveled from the 

motel down to Peabody, those things went right out the 

window."

That these items, which the prosecutor appropriately described 

as identifiable, had been discarded is a reasonable inference 

permitted by the evidence, and, as such, was within the bounds 

of proper argument. See Commonwealth v. Semedo, 456 Mass. 1, 13

(2010) ("In closing argument, a prosecutor may analyze the 

evidence and suggest reasonable inferences the jury should draw 

from that evidence"). The hat, as described by Correa, was 

distinctive and the envelope bore Correa's handwritten notes. 

Furthermore, the prosecutor was entitled to respond to comments 

made by both defense lawyers emphasizing the fact that these 
11

items were never found.8 See Commonwealth v. Bresilla, supra at

438; Commonwealth v. Semedo, supra at 14-15.

Conclusion. Because only one of the two convictions can 

stand, on indictment number 1, the judgment is vacated, the 

verdict is set aside, and the indictment is dismissed. The 

conviction on indictment number 2, is affirmed. The sentence is 

vacated and the case is remanded to the Superior Court for 

resentencing on one conviction of unarmed robbery. See 

Commonwealth v. Rivas, 466 Mass. 184, 187-189 (2013).

So ordered.

 

8 Because defense counsel objected to the remarks at issue, 

we review for prejudicial error. See Commonwealth v. Semedo, 

supra at 12.