## Facts

- In the early morning of November 24, 1996, two shootings occurred minutes apart by car: a shooting at Club Caravan in Revere (two victims wounded) and a shooting at a Comfort Inn in Saugus (Robert Nogueira killed).
- The Revere victims, Charles McConnell and Vincent Portalla, were involved in the drug trade; Nogueira was described as Portalla’s “enforcer.”
- Shortly after midnight, McConnell and Portalla searched for John Bacigalupo and Gary Carter, believing they owed Portalla money; they went to Bacigalupo’s home and then to Carter’s home.
- McConnell and Portalla found Carter outside his home sitting in a blue Ford Taurus, wearing gloves and appearing nervous; Carter asked whether Portalla intended to hurt him and told them to follow him, leading them to Club Caravan.
- The prosecution sought to link the Revere and Saugus shootings through relationships among the individuals involved, an alleged drug-related financial motive, close timing and geography, and ballistics evidence connecting the shootings and the defendant.
- At the joint trial, the Commonwealth introduced testimony from John Patti recounting Carter’s out-of-court statements about the shootings.
- Although the trial judge intended to exclude any reference to Bacigalupo through redaction and gave limiting instructions, Patti’s testimony referred to Carter’s “friend” involved in the shooting and included testimony that “Johnny had shot Nogueira,” after Patti had referred to Bacigalupo as “Johnny.”
- Bacigalupo was convicted (jointly tried with Carter) of first-degree murder by deliberate premeditation and related firearm and assault offenses; two motions for a new trial were denied.

## Issues

1. Whether admission at a joint trial of a non-testifying codefendant’s extrajudicial confession that, in context, implicated the defendant violated the Sixth Amendment confrontation right and Massachusetts constitutional protections under the Bruton rule, and, if so, whether the error was harmless beyond a reasonable doubt.
2. Whether the evidence was sufficient to permit a rational jury to find beyond a reasonable doubt that Bacigalupo participated as a shooter in the homicide and the related offenses, such that retrial would not be barred by double jeopardy.

## Decision

- The Supreme Judicial Court reversed Bacigalupo’s convictions and reversed the denial of his first motion for a new trial.
- The court held that admitting Carter’s extrajudicial confession at the joint trial violated Bruton because, despite redaction and limiting instructions, the jury could readily identify Bacigalupo as the person implicated.
- The court held the constitutional error was not harmless beyond a reasonable doubt.
- The court further held that the evidence at trial was sufficient to support the convictions, so double jeopardy did not bar retrial.

## Legal Principles

- A defendant’s confrontation rights are violated when a non-testifying codefendant’s confession is admitted at a joint trial and, even if redacted, the confession in context clearly identifies and incriminates the defendant.
- Limiting instructions and nominal redactions do not cure a Bruton violation when surrounding testimony makes the redacted references effectively transparent to the jury.
- A Bruton/Confrontation Clause violation is reviewed for harmlessness beyond a reasonable doubt; reversal is required when the court cannot conclude the verdict was unaffected.
- When reversing for trial error, an appellate court must assess evidentiary sufficiency to determine whether double jeopardy permits retrial.
- Circumstantial proof (including ballistics, relationships among participants, motive evidence, and temporal/geographic proximity) can be sufficient to sustain a murder conviction.

## Conclusion

The Massachusetts Supreme Judicial Court reversed Bacigalupo’s convictions because a non-testifying codefendant’s confession, presented through a third-party witness, effectively identified Bacigalupo despite redaction and limiting instructions, creating a non-harmless Bruton confrontation violation; however, the court found the trial evidence sufficient, permitting retrial.


Commonwealth v. Bacigalupo, 918 N.E.2d 51 (Mass. 2009)