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COMMONWEALTH vs. Lavar LEGGETT
COMMONWEALTH vs. Lavar LEGGETT. No. 10-P-1092. Suffolk. October 11, 2011. - November 14, 2012. Practice, Criminal, Double jeopardy, Probation, Sentence. Constitutional Law, Double jeopardy, Sentence. INDICTMENTS found and returned in the Superior Court Department on July 19, 1996. Following review by this court, 73 Mass.App.Ct. 1118 (2009), a resentencing hearing was held before Peter M. Lauriat, J., and motions for postconviction relief and for reconsideration were considered by him. Colleen A. Tynan for the defendant. Zachary Hillman, Assistant District Attorney, for the Commonwealth. Present: Berry, Cohen, & Sikora, JJ. SIKORA, J. This appeal requires us to measure a reconstructed sentencing scheme against the standards of the prohibition against double jeopardy. After service of a portion of his original sentencing program upon four related convictions, the defendant moved successfully for resentencing by a different judge. He contends that the resulting scheme punishes him twice for two of the convictions and thereby violates the ban against double jeopardy. No prior Massachusetts decision appears to have encountered our question squarely. However, Federal precedents provide substantial guidance. For the following reasons, we affirm the judge's denial of relief from the second sentencing scheme. Background. 1. Underlying convictions. The convictions of the defendant, Lavar Leggett, resulted from a Superior Court jury trial presenting the following evidence. On June 22, 1996, at approximately 3:50 A.M., Joseph Cassell, the victim, got out of a taxicab at the corner of Blue Hill Avenue and Johnston Road in the Dorchester section of Boston. As Cassell walked down Johnston Road in the direction of his home, he heard shouts and then gunshots. He then saw two persons walking toward him; at that point he began to run toward his home. As Cassell ran, he received a shot in the back and fell to the ground. As he began to get up, he saw a gun in his face. Cassell grabbed the barrel and pushed it away. He started to run again. He then absorbed three shots, one in the scapula, one in the upper middle back, and one in the right arm. As he staggered home, he noticed that the assailants had fled toward Blue Hill Avenue. Cassell underwent six days of hospital treatment for his injuries. He returned subsequently for removal of the bullet from his right arm. At the time of the shooting, Boston police Detectives Brian Black and Kevin McGoldrick were traveling in an unmarked cruiser along Blue Hill Avenue toward Johnston Road. They saw two individuals sprint across Blue Hill Avenue, followed seconds later by a third person. The third figure, later identified as the defendant, was holding his right arm down by his side as he ran. The detectives pursued the individuals; McGoldrick remained in the police cruiser, and Black chased the defendant on foot. McGoldrick alerted Black that the defendant had a gun in his right hand. As the defendant raced away from Black he discarded the weapon. McGoldrick intercepted and arrested the defendant, and placed him in the cruiser. Detective Black then returned to the path of the chase and recovered a .22 caliber revolver. The serial number on the gun had been "obliterated." Ballistics testing later showed that recovered shell casings and the bullet removed from the victim's arm were fired from the recovered revolver. 2. Procedural history. Approximately one month later a Suffolk County returned four indictments against the defendant: possession of a firearm without a license, G.L. c. 269,

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