Commonwealth v. Resende

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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 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 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 felony-
murder, 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 felony-
murder 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 felony-

murder 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 felony-

murder, 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 felony-

murder 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.