381 Mass. 379 | Mass. | 1980
Lead Opinion
This is the third of three cases decided today concerning the possible application of double jeopardy principles expressed in Burks v. United States, 437 U.S. 1 (1978), to the two-tier trial system used for the disposition of criminal and juvenile cases in the District, Municipal, and Juvenile Courts in the Commonwealth.
Here, we are concerned with delinquency proceedings against a juvenile that were first heard at a bench trial in December, 1978. The juvenile was found guilty on charges
At the time of the trial of this case, on December 19,1978, the old two-tier system was in effect.
The fifteen-year-old juvenile was arraigned in the Municipal Court of the West Roxbury District (West Roxbury Court) on two complaints alleging him to be a delinquent child by reason of receiving stolen goods (G. L. c. 266, § 60) and by reason of possession of burglarious instruments (G. L. c. 266, § 49). On December 19, 1978, the matters were heard in the judge’s chambers. The proceedings were not recorded.
After the juvenile was arraigned in the Appellate Division of the Boston Juvenile Court, his counsel moved to dismiss
We need not pass on the question whether the evidence at the bench trial was sufficient to warrant the findings of delinquency. We note, however, that even if a finding of delinquency or guilt is warranted solely on the basis of inadmissible hearsay, it is far from clear that a retrial would be barred. The Burks opinion stresses a distinction “between reversals due to trial error and those resulting from evidentiary insufficiency .... [I]t is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis.” Burks v. United States, supra at 15. “In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.” Id. The Court in the Burks case lists as one category of trial error “the incorrect receipt or rejection of evidence.” Id. The opinion does not state whether “trial error” alone or “evidentiary insufficiency” as well is involved when the only evidence in support of proof of an element of a crime is evidence that was improperly admitted. The Supreme Court left this question open in Greene v. Massey, 437 U.S. 19, 26 n.9 (1978), a case decided the same day as the Burks case. We need not answer this question in order to decide this case.
So ordered.
The system in effect today for the trial of a child complained against as a delinquent in a District or Juvenile Court is substantially the same as the two-tier system in effect for an adult complained against in a District or Municipal Court. Compare G. L. c. 119, § 55A, inserted by St. 1978, c. 478, § 56, effective January 1, 1979 (see St. 1978, c. 478, § 343), with G. L. c. 218, §§ 26A and 27A, inserted by St. 1978, c. 478, §§ 188, 189. Any double jeopardy challenge to the present two-tier system for juveniles is controlled by our decision in Lydon v. Commonwealth, ante 356 (1980).
In this case, the appeal was to the Boston Juvenile Court for a trial before a jury of twelve. G. L. c. 119, § 56, as amended through St. 1977, c. 431, § 2.
District Municipal Courts Rule of Civil Procedure 114 (1975) requires the electronic recordation of all “courtroom proceedings” in cases heard in
The reservation and report states that the following is the principal question raised: “Whether the juvenile’s constitutional right not to be twice put in jeopardy for the same offense would be violated if he were required to stand trial de nova in the Appellate Division of the Boston Juvenile Court on two charges as to which the admissible, nonhearsay evidence presented by the Commonwealth thereon in the prior hearing in the juvenile session of the district court was not sufficient to support a finding of guilty beyond a reasonable doubt. See Burks v. United States, 437 U.S. 1 (1978).”
The parties have stipulated that the order remanding the case to the West Roxbury Court “is not a matter placed in issue by the present proceeding.” We construe this statement to be an indication by the juvenile that, if his motion to dismiss was rightly denied, he favors a new proceeding in the West Roxbury Court rather than an immediate jury trial in the Appellate Division of the Boston Juvenile Court. Although the juvenile disclaims any challenge to the remand of the proceedings for a new bench trial, he cannot be conceding that those new proceedings would cure a violation of his double jeopardy rights. If double jeopardy rights are applicable to this case, they bar a rehearing in the West Rox-bury Court just as they bar a jury trial in the Appellate Division of the Boston Juvenile Court.
Double jeopardy considerations aside, it seems clear that the procedure followed in the West Roxbury Court failed to afford the juvenile rights to which he was entitled. District Court Rule 205 (1976), one of several applicable to juvenile proceedings, requires that a summons issued on a complaint against a child shall have á notice attached to it which advises the juvenile, among other things, that “(4) . . . you have a right ... to re
Since the decision in the Greene case, several courts have been presented with this question. Some courts have held summarily, without any discussion of the reasons for their rulings, that a retrial is barred when evidence presented to the trier of fact was sufficient to warrant a conviction but the properly admitted evidence was not. Matter of M.L.H., 399 A.2d 556, 558-559 (D.C. 1979). State v. Bannister, 60 Haw. 658, 660-661 (1979). State v. Abel, 600 P.2d 994, 999 (Utah 1979). However, a
In this Commonwealth, prior to the Burks case, this court ordered the entry of a judgment of not guilty where a defendant was charged with possession of a narcotic drug, and we concluded that the drug had been seized in violation of the defendant’s constitutional rights. Commonwealth v. Silva, 366 Mass. 402, 410-411 (1974). In that case, a new trial was not warranted, although the evidence admitted at the trial supported the conviction, because it was clear that after suppression of the evidence the Commonwealth could not possibly prove its case in a new trial.
More recently, in a case decided after the Burks and Greene decisions, this court ordered the entry of judgments of not guilty because, disregarding certain inadmissible evidence, there was no evidence on the record that the defendants had committed the crime. Commonwealth v. Fun-ches, 379 Mass. 283, 296 (1979). We noted, citing the Burks and Greene cases, that the Commonwealth had had a fair opportunity to offer whatever proof it could assemble and that, if the inadmissible evidence had been struck, the defendants’ motions for directed verdicts should have been allowed. Id. at 296-297. From a consideration of the evidence offered in the Funches case, we think it clear that the Commonwealth had no reasonable prospect of filling in the gap in its proof and thus the circumstances were, in effect, the same as in the Silva case, where no cure for the failure of proof could be devised at a second trial.
Dissenting Opinion
(dissenting, with whom Abrams, J., joins). I respectfully dissent for the reasons stated in my opinion in Lydon v. Commonwealth, ante 356 (1980). The record does not make clear the grounds for the judge’s decision in the Boston Juvenile Court to remand to the West Roxbury Court. The Boston Juvenile Court should be directed to rule on the sufficiency of the evidence. If the judge determines