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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.
