Opinion
14-P-436
02-05-2016
COMMONWEALTH v. CURTIS DAVIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a joint trial with his brother, defendant Curtis Davis was convicted on two counts of unarmed robbery, G. L. c. 265, § 19(b), by a jury in the Superior Court. In his appeal, he argues that his convictions are duplicative and violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. He further argues that the judge erred in allowing the prosecutor's closing argument that included "offending statements," instructing the jury on identification, and denying his postjudgment motion for a new trial on the basis of ineffective assistance of counsel.
The defendant's brother Clovicel Davis was convicted of the same offenses as the defendant. Both appealed, and the appeals were severed to allow this defendant to move for a new trial.
The facts and the issues raised on appeal are identical in all respects to those set forth in our decision in Clovicel's appeal, Commonwealth v. Davis, 88 Mass. App. Ct. 143 (2015). For the reasons stated in that decision, we conclude no error occurred at trial or in the denial of the motion for a new trial, but agree with the defendant that the convictions are duplicative.
Conclusion. On the first count charging unarmed robbery, the judgment is vacated, the verdict is set aside, and the indictment is dismissed. As we find no other error, the conviction on the second count of unarmed robbery is affirmed. The sentence, however, is vacated and the case is remanded to the Superior Court for resentencing.
So ordered.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.