Lead Opinion
Frances Choy (defendant) was tried in the Superior Court on one indictment charging arson, G. L. c. 266, § 1, and two indictments charging murder in the first degree, G. L. c. 265, § 1. At trial, the Commonwealth proceeded on the premise that the defendant was guilty as the principal, and did not introduce evidence that the defendant was guilty as a joint venturer. Consequently, the jury were instructed as to principal, but not joint venture, liability. Her trial ended in a mistrial when
In her appeal, the defendant continues to claim that her right to be free of double jeopardy prohibits her retrial as a principal. She argues in the alternative that, even if double jeopardy does not prohibit retrial categorically, the Commonwealth is precluded from now relying on a joint venture theory after failing to pursue it at the first trial.
1. Background. We summarize the facts in the light most favorable to the prosecution. In April of 2003, the defendant was a high school senior residing at 102 Belair Street in Brockton. Living with her at that address were her parents and her nephew, Kenneth Choy. At approximately 5 a.m. on April 17, Brockton
Fire fighters entered the building to attempt to rescue Jimmy and Anne Choy. Fire Fighter Brian Nardelli entered the master bedroom and found Anne Choy lying on the bed. He removed her from the house and returned to the bedroom. On his second trip, he found Jimmy Choy lying on the floor between the bed and the window and removed him from the building. Paramedics began medical treatment of the victims immediately. The victims were hospitalized and each died that day as a result of smoke inhalation and bums.
Expert testimony from Sergeant Jeanne Stewart, a State police fire investigator, indicated that the fire was set intentionally and appeared to be designed to spread toward the master bedroom. Additionally, fire investigators found gasoline throughout the house and on the defendant’s sweatpants. A State police sergeant testified that the defendant told him that she resented her parents because they prevented her from spending time with her boy friend, assigned her extensive chores, and planned to force her to five at home when she entered college. Additionally, she told the officer that she believed she was the beneficiary of a life insurance policy purchased by her parents. A Brockton police officer testified that on two occasions the defendant admitted that she planned the fire and placed containers of gasoline throughout the house, but on both occasions she immediately retracted her statement.
A grand jury indicted the defendant on charges of arson and murder. The grand jury also returned two indictments against Kenneth Choy charging murder. A judge in the Superior Court severed their trials. He also allowed the Commonwealth’s motion in limine to exclude Kenneth Choy’s handwritten notes from evidence at the defendant’s trial. Those notes, found in his
During deliberations, the jury submitted a question asking if a guilty verdict required them to find that the defendant started the fire herself. The judge answered, “No,” over the defendant’s objection. Eventually, the jury reported that they could not reach a verdict, and the judge declared a mistrial. Following the mistrial, the defendant moved to dismiss all indictments on the ground that a retrial would violate the double jeopardy protections of the United States Constitution and Massachusetts common and statutory law.
2. Sufficiency of the evidence. The defendant maintains that the prohibition against double jeopardy prevents the Commonwealth from trying her a second time because the evidence presented at her first trial was insufficient to establish her guilt. She argues that her renounced confession, the gasoline vapors on her clothing, and her demeanor in interactions with police officers are an insufficient basis from which a jury could find that she set the fire. In addition, the defense points to evidence at trial that the defendant telephoned 911 and was in danger from the fire. Furthermore, she suggests that the evidence shows that Kenneth, not she, was the party responsible for setting the fire. We conclude that the evidence was sufficient to support convictions of arson and murder.
The United States Constitution and Massachusetts common and statutory law protect criminal defendants from being twice placed in jeopardy for the same crime. Benton v. Maryland,
In reviewing the sufficiency of the evidence, we determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore,
We conclude that a rational jury could determine, based on the evidence the Commonwealth presented at trial, that the defendant set the fire that killed Jimmy Choy and Anne Choy. The evidence supported a finding that the fire was set intentionally by the use of gasoline. Fire investigators found gasoline on the defendant’s sweatpants. There was evidence, the credibility and weight of
The evidence was also sufficient for the jury to determine that the killings were premeditated or committed with extreme atrocity or cruelty. Deliberate premeditation requires forming “a plan to kill after deliberation and reflection, but no particular length of time is required.” Commonwealth v. Coren,
3. Judicial error. The defendant contends additionally that, even if the evidence was sufficient at her first trial, retrial is impermissible because the mistrial that occurred was the result of a judicial error. During deliberations, the jury submitted a question asking whether a conviction required a finding that the defendant actually started the fire herself. The defendant claims that the judge’s negative response was erroneous because it was inconsistent with the evidence. Moreover, she alleges that the
There was no evidence presented at trial that anyone other than the defendant set the fire. There was evidence that Kenneth Choy appeared calm when emergency personnel arrived on the scene, that there was a rolled up towel behind his bedroom door that would have impeded the fire’s spread into his bedroom, and that there was lighter fluid and a lighter in a drawer in his bedroom. That evidence is not sufficient to justify a jury in deciding beyond a reasonable doubt that Kenneth Choy in fact set the fire himself. Nor was there evidence presented that the defendant participated in a joint venture with Kenneth or anyone else to set the fire. Thus, the judge’s answer to the jury’s question invited the jury to convict the defendant under a theory for which there was insufficient evidentiary support, and was therefore erroneous.
While the defendant is correct that the judge’s answer was erroneous, we conclude that the defendant’s claim that the error bars any retrial is without merit. “Absent evidence that the judge acted in bad faith, alleged judicial errors giving rise to a mistrial do not support a claim of double jeopardy.” Commonwealth v. Ellis,
4. Joint venture theory. The defendant maintains that, even if
The arson statute provides that “[wjhoever wilfully and maliciously sets fire to, bums, or causes to be burned, or whoever aids, counsels or procures the burning of, a dwelling house . . . shall be punished.” G. L. c. 266, § l.
Judgment affirmed.
Notes
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be twice put in jeopardy of life or limb.” This prohibition applies to State governments through the Fourteenth Amendment to the United States Constitution. Benton v. Maryland,
Although not explicitly enumerated in the Massachusetts Declaration of Rights, protection against double jeopardy has long been a part of Massachusetts common and statutory law. Commonwealth v. Woods,
A defendant raising “a double jeopardy claim of substantial merit” is entitled to appellate review of that claim before the second trial commences. Neverson v. Commonwealth,
In addition, the defendant argues that retrying her on a joint venture theory is barred by judicial estoppel and would create an impermissible variance with the indictment. We discuss these issues infra.
The defendant also claimed that the Commonwealth was judicially estopped from retrying her as a joint venturer.
The Commonwealth urges that we revisit our holding in Berry v. Commonwealth,
There is no dispute that at the trial, the Commonwealth did not pursue a joint venture theory: it did not suggest a joint venture theory in its opening statement, present any evidence to support a joint venture between the defendant and her nephew, Kenneth Choy, or seek a joint venture instruction when the jury were originally charged. The Commonwealth did request a joint venture instruction after the jury asked whether the defendant must have started the fire physically in order to be found guilty, but the judge denied the request.
General Laws c. 266, § 1, was rewritten in 1932 specifically to broaden the types of acts that would constitute the crime of arson. See St. 1932, c. 192, § 1. General Laws (Ter. Ed.) c. 266, § 1, had applied only to one who “wilfully and maliciously burn[ed] the dwelling house of another” or “wilfully and maliciously set[] fire to a building by the burning whereof such dwelling house is burned.” See Commonwealth v. Bloomberg,
Kenneth Choy was indicted for murder in the first degree of Jimmy and Anne Choy, was tried separately from the defendant on these indictments, and was acquitted. The Commonwealth informs us that it intends to call Kenneth Choy as a witness at a retrial of the defendant, and describes Kenneth Choy’s anticipated testimony, which includes a detailed recitation of his participation in the planning and execution of the fire that burned the house and led to the deaths of Jimmy and Anne Choy.
Depending on the evidence, and in accordance with the terms of the arson statute, the jury could be instructed along the following lines:
“A person commits the crime of arson if she commits any one or more of the following acts: she sets fire to a dwelling house or home; she bums the home; she causes the home to be burned; or she aids and abets, counsels, or arranges for the burning of the home. If the Com*154 monwealth proves beyond a reasonable doubt that the defendant herself committed any one or more of the acts that I have just described, you may find the defendant guilty of arson.”
This is intended as a template. It would only be appropriate to include (in the description of the acts that may constitute the crime of arson) those specific acts set out in the arson statute for which there is sufficient evidentiary support to warrant a finding of guilt beyond a reasonable doubt. Moreover, some of the words used in the statute — and therefore in this template instruction — may well warrant further definition or explanation for the jury by the trial judge.
As set out in the Model Jury Instructions on Homicide 7 (1999), to prove the crime of murder in the first degree the Commonwealth must establish beyond a reasonable doubt, inter alla, that there was an “unlawful killing” of the victims; the term “killing” refers to “causing of death.” On the assumption that the evidence on retrial establishes that the victims, Jimmy and Anne Choy, died as a result of smoke inhalation and burns from the fire in their home, if the jury were to find that the defendant committed arson by committing one or more of the acts set out in the arson statute, they would be entitled to find that by so doing, she caused the death of her parents, whether or not her nephew, Kenneth Choy, assisted her in setting the fire.
The defendant claims that principles of judicial estoppel prohibit the Commonwealth from pursuing a joint venture theory at a retrial of this case, and that pursuit of joint venture liability would create an impermissible variance with the indictment. (See note 4, supra.) For the reasons just discussed in the text, we have concluded that the specific terms of the arson statute, G. L. c. 266, § 1, permit the Commonwealth on retrial to pursue a theory that the defendant, while acting together with Kenneth Choy in setting fire to her parents’ home, is guilty of arson (and murder) as a principal, and therefore there is no need in this case to reach the question whether the Commonwealth generally may pursue a joint venture theory on retrial of a case originally tried on a theory of principal liability only. Nevertheless, we briefly address the defendant’s two claims. Judicial estoppel prevents a party “who has successfully maintained a certain position at a trial . . . [from assuming at a subsequent trial between the same parties] a position relative to the same subject that is directly contrary to that taken at the first trial.” Commonwealth v. Semedo, ante 1, 18 (2010), quoting Commonwealth v. Prophete,
Dissenting Opinion
(dissenting, with whom Spina, J., joins). I agree with the court that the evidence at the first trial was sufficient to sustain convictions, had the jury so determined, of murder in the first degree and arson, on the ground that the defendant was the principal perpetrator of those offenses. Accordingly, the defendant may be retried on that theory. I do not agree that the defendant may, consistent with principles applicable to double jeopardy, be retried on the alternative theory
It is undisputed that the Commonwealth did not seek to convict the defendant as a joint venturer at the first trial. The Commonwealth did not suggest a joint venture in the opening statement,
The question is, therefore, whether at a retrial the Commonwealth may be permitted to do what it did not do before. We have stated in dictum that double jeopardy principles forbid the Commonwealth from introducing a new theory for the first time at a retrial. See Taylor v. Commonwealth,
“We think it is clear as a matter of common law principle that, if a defendant demonstrates on appeal that the evidence was insufficient to warrant his conviction of a crime on a particular theory, on retrial for the same crime the prosecutor may rely on other theories justifying his conviction that were supported by the evidence at the first trial but may not rely on a theory that should not have been given to the jury at that first trial. The double jeopardy clause of the Fifth Amendment to the Constitution of the United States probably requires the same conclusion.”
Commonwealth v. Fickett,
Few courts in other jurisdictions have addressed the issue. The courts that have considered it have reached different conclusions, but without an extensive analysis of the principles involved. On the one hand, see State v. Hernandez,
In my view, the core purposes of the prohibition against double jeopardy prevent the Commonwealth from relying on a theory of liability at a second trial after failing to present evidence based on that theory at the initial trial. One fundamental purpose of the double jeopardy clause is to protect criminal defendants from the “embarrassment, expense . . . ordeal. . . anxiety and insecurity” of multiple prosecutions. Green v. United States,
Retrial is permissible when the first jury cannot agree on a verdict, but only where the Commonwealth has met its burden in the first trial to present evidence strong enough that a rational jury could have found the defendant guilty beyond a reasonable doubt. Berry v. Commonwealth,
In Saylor v. Cornelius, supra, the United States Court of
Reviewing a lower court decision denying Saylor’s Federal habeas corpus petition, the Sixth Circuit held that it would violate the defendant’s right to be free from double jeopardy to allow the accomplice theory at a retrial. Saylor v. Cornelius, supra at 1403, 1408. The court reasoned that, despite adequate evidence, the prosecutor had failed to ensure that the charge reached the jury for consideration and thus could not receive a second chance to do so. I believe that the Saylor court’s reasoning applies even more forcefully when, as here, the prosecutor has offered no evidence at all in support of a given theory of guilt. In the present case, the Commonwealth made a conscious choice to forgo a joint venture prosecution. It only sought to present a joint venture theory once deliberations began in the first trial and the jury indicated that they were entertaining the possibility that more than one person might have been involved.
What is important in the Saylor decision is not so much the presence or absence of sufficient evidence in support of the prosecutor’s chosen theory at the first trial;
I would conclude that the prohibition against double jeopardy enshrined in the Federal Constitution, and in the common and statutory law of Massachusetts, does not permit such a second bite at the apple. The Commonwealth has both the resources and the flexibility necessary to investigate the case, bring appropriate charges at a time of its choosing, and prepare the case for trial on whatever theories it deems viable. The Commonwealth should be held to its choices in this regard.
Applying principles of double jeopardy in this way does not deprive the Commonwealth of the use of new evidence that may materialize between an original trial and a new trial. It is not new evidence that principles of double jeopardy prohibit, but rather, new legal principles on which the Commonwealth seeks to predicate guilt. In the present case, the Commonwealth proceeded on the supposition that the defendant herself burned down the house, thereby committing itself to a theory of the case. The Commonwealth could have, but did not, proffer as an alternative that the defendant acted as a joint venturer. Having chosen its course, the Commonwealth may (subject to adequate notice) introduce whatever evidence in support thereof it may have, but it is not free to depart from its chosen route at its convenience.
Our recent decision in Commonwealth v. Zanetti,
The Zanetti decision does not consider double jeopardy issues and does not establish that a retrial on joint venture liability must be permitted in this case. Protection against double jeopardy is separate from the due process right to a verdict based on sufficient evidence. Principles of double jeopardy place limits on the Commonwealth’s conduct in subsequent criminal proceedings. These principles determine whether the Commonwealth may seek to convict a defendant of a crime or prove an essential fact in light of prior proceedings on the same subject. See Ashe v. Swenson,
The court today sidesteps the double jeopardy question by locating a right to retry the defendant as a joint venturer under the arson statute (G. L. c. 266, § 1). That statute provides in relevant part that “[wjhoever wilfully and maliciously sets fire to, burns, or causes to be burned, or whoever aids, counsels, or procures the burning of, a dwelling house . . . shall be punished ...” (emphasis supplied). Thus, the statute permits prosecution of a given defendant as a principal, as a joint venturer, or both. Contrary to the holding of the court, what it does not do is permit the Commonwealth to seek to convict under different portions of the statute at successive trials. Because the court misconstrues the statute and applies it in a manner that violates the prohibition against double jeopardy, I respectfully dissent.
Despite Commonwealth v. Santos,
Obviously, if there is an absence of sufficient evidence to support the prosecutor’s chosen theory, the charge cannot be retried.
For an opposing view, see Commonwealth v. Zanetti,