After trial in the Boston Juvenile Court, Appellate Division, the jury found that the juvenile was delinquent on a charge of unlawful possession of a firearm but did not agree on a verdict on a charge of delinquency by reason of murder. The judge declared a mistrial and scheduled the matter for retrial. By petitions under G. L. c. 211, § 3, originally presented to a single justice of this court, the juvenile here raises various issues which in major aspect assert a claim of double jeopardy. There was no error; retrial of the juvenile on the murder charge is appropriate.
At the conclusion of the trial below, the judge had delivered his charge to the jury, which included instructions on the lesser offenses included in the complaint charging murder, as well as instructions on the complaint charging unlawful possession of a firearm. At that time, the jury received four verdict slips: murder in the first degree — guilty or not guilty; murder in the second degree — guilty or not guilty; manslaughter — guilty or not guilty; and unlawful possession of a firearm — guilty or not guilty.
On the third day of deliberations, the judge asked the jury whether they could reach a verdict on the murder charge. After the jury answered affirmatively, thejudge discharged the jurors until the next morning. On the fourth day of deliberations, the foreman sent the judge a note indicating that the jurors were deadlocked on the complaint which charged murder. Thejudge asked the jurors in open court whether they were “unable to reach a verdict on the complaint that charged murder.” The jury replied that they could not reach a verdict. The judge then asked the jury whether they had reached a verdict on the firearms charge, and the jury responded affirmatively.
At this point the judge called a side bar conference at which he indicated his intention to declare a mistrial on the murder charge. The juvenile’s attorney requested that, before declaring a mistrial, the judge inquire whether the jury had reached verdicts on any of the charges included within the murder complaint. This the judge declined to do. The judge then, over the defendant’s objection, declared a mistrial on the murder complaint for the reason that the jury had affirmed that they *54 were deadlocked on that complaint. The jury thereafter affirmed a verdict of guilty on the firearms complaint. The judge postponed sentencing on the firearms complaint, and scheduled a retrial on the murder complaint.
Some weeks or months after the trial had concluded and the jury had been discharged, four verdict slips were brought to the attention of the judge for the first time. A court officer had picked up the verdict slips from the jury deliberation room after the trial was over and then had handed the slips to the clerk. The slips were kept in the Boston Juvenile Court, Appellate Division, clerk’s folder on the murder complaint, but they were not brought to the attention of the judge until after the trial. Two of these slips showed, respectively, “not guilty” entries as to murder in the first degree and murder in the second degree; both slips were signed by the foreman of the jury.
The juvenile filed a petition under G.L.c.211,§3, requesting that the Supreme Judicial Court exercise its extraordinary power to order findings of not guilty of murder in the first degree and murder in the second degree and to dismiss so much of the murder complaint as charges manslaughter. A single justice stayed the trial below in order to allow the juvenile time to file appropriate motions in the Boston Juvenile Court. Subsequently, the juvenile filed in that court a motion to dismiss the murder complaint or to enter not guilty verdicts, a motion for permission to subpoena the jury foreman, and a motion to dismiss the complaint as to unlawful possession of a firearm based on delay in sentencing. The last motion was accompanied by two letters from personnel of the Department of Youth Services who recommended some sort of long-term therapy for the juvenile. All of these motions were denied by the trial judge. The juvenile then filed a petition in the county court seeking an order that the juvenile be sentenced on the firearms conviction “forthwith.”
After hearing, a single justice of this court denied the petition seeking an order to the Boston Juvenile Court that the juvenile be sentenced forthwith on the firearms conviction, and the juvenile appealed. The single justice reported, without decision, all other issues to the full court.
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The trial judge has discretion, in some circumstances, to declare a mistrial without the defendant’s consent, or even over the defendant’s objection, when the judge deems that the ends of justice cannot be attained without discontinuing the trial.
Illinois
v.
Somerville,
In the present case, the judge was warranted in concluding that there was a manifest necessity for a mistrial, on the ground that the jury, after deliberating for four consecutive days, reported that they were deadlocked on the murder complaint.
The judge was under no duty to inquire as to the status of the jury’s deliberations on each of the lesser included charges within the murder complaint. Rule 27 (a) of the Massachusetts Rules of Criminal Procedure,
A majority of States which have considered the issues raised here have rejected the partial verdict.
2
In
People
v.
Hickey,
Nor can it be said that the jury reached any verdicts here, partial or otherwise. The fact that “not guilty” verdict slips, signed by the foreman of the jury, were found in the jury room, does not affect our reasoning here. In addition to providing that the verdict shall be “general,” rule 27 (a) requires that the verdict be returned by the jury to the judge in open court. “The only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open and public verdict, given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction
*57
of the court.”
Lawrence
v.
Stearns,
Nor was there error in the judge’s denial of the juvenile’s motion to subpoena the foreman. That process could only be aimed at an impeachment, months after the fact, of the jury’s report to the judge in open court, and we conclude that such an impeachment, in the circumstances shown here, would be impermissible. See
Commonwealth
v.
Fidler,
Finally, there was no error in the denial by the single justice of the juvenile’s petition for immediate sentencing on the conviction of unlawful possession of a firearm. Whether there is a right to speedy sentencing is far from clear, see
Commonwealth
v.
McInerney,
In so far as the single justice denied relief, the judgment is affirmed. There was no error in the trial judge’s rulings on the juvenile’s various motions. Further proceedings in the Boston Juvenile Court, Appellate Division, are to be consistent with this opinion.
So ordered.
Notes
We deal here with a complaint charging a single murder. Where a complaint or indictment, in multiple counts, charges multiple crimes (e.g., two separate murders; two separate armed robberies) a general verdict could be returned as to one of the counts, despite deadlock on the other counts.
See, e.g.,
Walters
v.
State,