11 Mass. App. Ct. 688 | Mass. App. Ct. | 1981
A single justice of this court has reported the question whether the Commonwealth is barred by the double jeopardy clause of the Fifth Amendment to the Federal Constitution from retrying Edward R. Barton, Jr. (hereinafter the defendant), on two felony indictments after his initial trial terminated in a mistrial. We conclude that there was no “manifest necessity” for the declaration of a mistrial and,
The defendant and one Joshua Nixon were put to trial on November 18, 1980, before a fourteen person jury in the Superior Court on indictments charging them both with armed robbery and assault and battery by means of a dangerous weapon. During the first two and one-half days of trial, the jury learned the following. On June 3, 1980, the victim, an off-duty Boston police officer, was assaulted and robbed near his home by two men, one of whom was carrying a shotgun and the other of whom was holding what appeared to be a knife. In the course of the incident, the victim disarmed the man with the shotgun, drew his service revolver, and fired a shot which wounded that assailant. This man was apprehended near the scene and identified as Joshua Nixon. The other assailant escaped in a car. This man was subsequently identified by the victim from a photographic array as the defendant Barton.
At the mid-point of the third day of the trial, a court officer reported to the trial judge that he had been approached by a female juror. This juror informed the officer that she had observed a young woman in the courtroom conversing with the defendant Nixon, that she knew the woman, and that she was afraid for her own life. The juror was immediately sequestered and brought to the lobby for examination by the trial judge and counsel. There she indicated that she knew the woman seen with Nixon from a school they had both attended, that she felt (for unexplained reasons) that her life would be in jeopardy if she remained on the jury, and that she had communicated her fears to a second female juror sitting next to her in the box. The trial judge excused her from the panel and instructed her not to speak to any other member of the jury.
The juror was brought to the lobby. She confirmed being told by the first juror of the latter’s observations of a woman talking to Nixon and about that juror’s desire to be excused. She did not know the reasons for her colleague’s difficulty, but she had inferred that her companion had become fearful of staying on the case. She indicated that other jurors might have heard the first juror say that she knew the wo
The trial judge expressed his concerns that the remaining jurors might have become aware of what had transpired and that they might have been prejudiced. He was also concerned with the fact that both additional jurors had been excused. Counsel for Barton stated his belief that the evidence would be completed that afternoon and repeated his objection to a mistrial.
We have before us the transcript of proceedings considered by the motion judge and we are in the same position as he was to decide the case. In these circumstances, our appellate function requires that we independently determine the correct application of constitutional principles to the events that occurred. See Commonwealth v. Murphy, 362 Mass. 542, 551 (1972) (Hennessey, J., concurring); Commonwealth v. Haas, 373 Mass. 545, 550 (1977); Commonwealth v. Wilborne, 382 Mass. 241, 251 (1981). The United States Supreme Court has consistently held that a mistrial can be ordered, over a defendant’s objection, only upon a showing of “manifest necessity” or a “high degree” of necessity. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). Downum v. United States, 372 U.S. 734, 736 (1963). United States v. Jorn, 400 U.S. 470, 487 (1971). Arizona v. Washington, 434 U.S. 497, 506 (1978). There is no convenient test by which to determine the presence of
We think that the information before the trial judge was insufficient to support a conclusion that the jury’s integrity had been damaged beyond repair. We also believe that the judge failed to give adequate consideration to the less drastic alternative of a severance which, if granted, would have permitted Barton’s trial to continue to a verdict. There is no doubt that the first juror was properly excused. A sufficient basis existed, in the judge’s discretion, to excuse the second juror, although it would have been preferable, before excusing her, to ascertain whether she could remain on the case with an open mind. No attempt was made to discover the reasons for the first juror’s “problem.” The information gathered from the second juror — in substance that the other members of the panel may have sensed some fear or nervousness on the first juror’s part — would not have warranted a conclusion that the objectivity of the entire panel had been irreparably compromised. In view of defense counsel’s strenuous and repeated objections, a reasoned decision on the motion for mistrial required that the judge
Moreover, we think that the alternative remedy of a severance was inadequately explored. Barton’s request for a severance took into account several considerations, including the fact that the incident with the juror involved only the defendant Nixon, the fact that the trial was likely to conclude that day or the next, and the fact that Barton was willing to take the chance that the remaining twelve jurors would be inclined to vote for an acquittal. The prossecutor’s response, set forth below,
Recently, in Jones v. Commonwealth, 379 Mass. 607 (1980), the Supreme Judicial Court discussed the use of
“We think that the deep respect due a defendant’s right to a single prosecution required serious consideration of severance as the appropriate remedy .... ‘Rulings on motions for severance are governed by a wide discretion and have a strong basis in considerations of trial efficiency and convenience. But a much more restricted discretion controls where double jeopardy is concerned, since this is a fundamental constitutional right.’ Scott v. United States, 202 F.2d 354, 356 (D. C. Cir.) (Bazelon, J., dissenting), cert. denied, 344 U.S. 879, and sub nom. Bayne v. United States, 344 U.S. 881 (1952). See Note, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449, 528 (1977). ‘Many and unpredictable are the sources of conflicting rights among themselves in the trial of co-defendants, especially in conspiracy cases. We are reluctant to open the field to mistrial for the benefit of one defendant at the cost of the valued right of another defendant to go to the jury of his selection . . . .’ United States v. Glover, 506 F.2d 291, 299 (2d Cir. 1974) (four defendants). Cf. United States v. Alford, 516 F.2d 941, 947 (5th Cir. 1975); Thomas v. Beasley, 491 F.2d 507, 509-510 (6th Cir.), cert. denied, 417 U.S. 955 (1974).”
Id. at 617. We believe that these principles apply here. As previously indicated, the prosecutor’s notion that the damage was “irremedial” is not supported by facts established in
With respect to the question reported to us we respond that, based on our review of the record, there was no “manifest necessity” for the mistrial for this defendant, and that the Commonwealth is barred from prosecuting him further on the indictments in question. The case is remanded to the Superior Court, where the indictments against the defendant Barton are to be dismissed.
So ordered.
Counsel for the defendant Barton attempted to ascertain the reason for the juror’s fear, as indicated by the following colloquy:
“Mr. Prince: Your Honor, before this gets out of control, I would like to be heard on this juror before you dismiss her from the case.
*690 1 would just like to add that I was trying to find out the basis of her fear, which has never come out.
She said she didn’t know him at all.
She did not indicate that she had had a run-in with him or a run-in with this woman in the past.
The Court: No.
Mr. Prince: Or that she was ever friendly with this woman or associated with this woman. So I don’t know what the basis of her fear is.”
“Mr. Prince: Your Honor, it is your responsibility to determine how tainted the jury is because although the remarks made by this juror could remain with only one person we don’t know that.
And before there is atnistrial declared, as of this moment the defendant Barton would oppose a mistrial.”
“Mr. Prince: Your Honor, may I be heard. First of all, I am opposed to the declaration of a mistrial without the Court hearing me further and determining just how infected the jury panel is.
Secondly, I would oppose a declaration of mistrial because the defendant Barton would be content to go forward with this jury as presently constituted even with an alternate taking [the juror’s] place.
Thirdly, I would oppose impaneling another jury because of the seriousness of double jeopardy and the seriousness of opening it up to appellate review because of double jeopardy prevents an individual from being put in jeopardy twice.
So I’d want to save his rights for various reasons. I would oppose any declaration of a mistrial and oppose impaneling a second jury.”
“Mr. Prince: There is a possibility this case could be concluded if we go a little bit longer this afternoon.
The Court: I’d like to do it, but I’m not going to.
Mr. Prince: May I finish, for the record. As far as Mr. Barton is concerned, he is satisfied with this jury.
The inferences that have been drawn by the two jurors that have now been excused have only been drawn towards the co-defendant Mr.- Nixon.
Mr. Barton is still content with this jury, and ready, and willing to continue with this case even with the remaining twelve jurors because this case as far as he is concerned could be concluded today.
I would certainly oppose any motion to declare a mistrial at this juncture. And if in fact you do decide to declare a mistrial that then we would use every opportunity for appellate review and, also, an opportunity to order a copy of the transcript so that we could be prepared for the next trial when it comes out.”
“Mr. Prince: I can present to you ... a Supreme Court case, which indicates if in fact a mistrial declared the defendant has the right to seek review —
Here a mistrial is being ordered over and above the defendant’s objection. In fact, he is prepared to go forward and severance, over and above the fact he is prepared to go to trial with the remaining 12 jurors that are presently sitting. He is willing to take that chance.
It inures to the Commonwealth to go forward. I am willing to go forward. Mr. Barton is willing to go forward.
If you do not allow him to go forward, we are going to appeal for a decision. And we are entitled to do so.”
“Mr. O’Neill: Your Honor, I have no fear as to the issue of double jeopardy because it will not attach here.
The Commonwealth moved for trial on joint enterprise. Barton is accused of assault and battery with a dangerous weapon, to wit, a shotgun which the evidence clearly puts in the hands of Nixon, not Barton, and armed robbery, the armed weapon being the shotgun — clearly, a joint enterprise with Nixon.
The Commonwealth has the right to try the two cases together. To sever now and to go forward with one and not the other and dismiss the two jurors would not remedy the situation.
The situation is irremedial.
The Commonwealth moves again that the Court declare a mistrial.”
The prosecutor’s concern that his case might suffer if the trial did not proceed with both defendants is difficult to appreciate. It appears that the Commonwealth’s case was nearly completed and that the jury had received the full story on the incident including the respective role of each assailant. Appropriate instructions would have permitted the jury to apply joint enterprise principles to Barton’s case alone, and we do not believe that an application of those principles would have been difficult in the circumstances.
The Commonwealth’s argument that “[njeither party has a right to have his case decided by a jury which may be tainted by bias” (Arizona v. Washington, 434 U.S. at 516) is, of course, a correct one, but it does not apply in this case, for the reasons already discussed herein and for those