Over the objection of the Commonwealth and notwithstanding the provisions of Mass. R. Crim. P. 15 (c), as appearing in
Facts and proceedings. In January of 2006, a complaint issued against the defendant for possession of a class B substance with intent to distribute, subsequent offense, in violation of G. L. c. 94C, § 32A (b), and for possession of drugs with intent to distribute in a school or park zone, in violation of G. L. c. 94C, § 321. The defendant filed a motion to suppress physical evidence and statements that he made.
The District Court docket reflects that the motion to suppress and a bench trial were conducted simultaneously on May 5, 2006: “Motion to [sjuppress and [bjench [tjrial combined. Some trial evidence to be introduced during [mjotion to [s]uppress hearing.” At the beginning of that proceeding, the defendant’s counsel requested that the judge conduct a jury-waiver colloquy. The Commonwealth protested that “Its [sic] on for a [mjotion to
In response to the judge’s questions, the prosecutor stated that she was not prepared for trial; she needed witnesses who were not present, one to prove the distance from the park, and an expert witness to establish intent. She said she would also need the drugs.
Despite the prosecutor’s objections, the judge stated that he would proceed with the motion to suppress and would also consider any evidence he heard for purposes of trial. Both parties eventually agreed to this procedure and the judge conducted a jury-waiver colloquy with the defendant. He next directed the clerk to “[sjwear in the witnesses for the trial,” and the witnesses were sworn as a group.
The prosecutor then asked, “just for my clarification, are we proceeding on the [mjotion to [sjuppress at this point?” The judge explained, “[Wje’re going to proceed on both, [mjotion to [sjuppress and the trial and we’ll suspend the rest of the trial for some other time. Right now, we’ll address the motion today, but anything I hear in this proceeding will be part of the trial.”
The evidentiary proceeding commenced, and the prosecutor called two officers of the Springfield police department, David Askins and Francisco Otero, to testify to the events surrounding the stop and arrest of the defendant.
Following the testimony of the two police witnesses on May 5, 2006, the matter was continued several times; at least twice the docket marking indicated a “continuation” or “continuance of trial.” On June 22, 2006, the defendant was indicted by a grand jury on charges of possession of cocaine with intent to distribute, subsequent offense, in violation of G. L. c. 94C, § 32A (d), and
After the defendant was arraigned in the Superior Court, he moved to stay the Superior Court proceedings or to continue the case until a determination was made by the District Court judge whether jeopardy had attached in the District Court. The defendant then filed a motion in the District Court for findings of fact and rulings of law on whether a trial had begun on May 5, 2006. The District Court judge found that a trial had started on May 5, 2006; that he had taken evidence for trial; and that he had retained personal jurisdiction of the case.
After various proceedings which we need not detail, the District Court judge set a trial date of February 5, 2007, and denied the Commonwealth’s motions for a stay and to continue the proceedings. As stated, the Commonwealth sought relief from a single justice of this court pursuant to G. L. c. 211, § 3.
Discussion. 1. Attachment of jeopardy. The double jeopardy clause of the Fifth Amendment to the United States Constitution, and protections recognized in Massachusetts statutory and common law, prevent a criminal defendant from being tried more than once for the same offense. See Commonwealth v. Woods,
The policy considerations underlying the prohibition against double jeopardy balance these rights of the defendant with the public’s interest in ensuring that criminal laws are enforced and prosecuting those accused of crimes in one “full and fair” trial. See Arizona v. Washington,
The “ ‘constitutional policies underpinning the Fifth Amendment’s guarantee’ [against double jeopardy] are not implicated before that point in the proceedings at which ‘jeopardy attaches.’ ” Serfass v. United States, supra at 390-391, quoting United States v. Jorn,
Based on the parties’ assertions that the complaint was amended to remove the subsequent offender claim and render the complaint one for violation of G. L. c. 94C, § 32A (a), possession of a Class B controlled substance with intent to distribute, an offense over which the District Court does have jurisdiction, we assume that the District Court did have jurisdiction over this case. See G. L. c. 218, § 26. Although the docket sheet and other motions in the record, as late as September of 2006, do not reflect such an amendment, both parties have proceeded on that assumption.
Here, the District Court judge ruled that jeopardy had attached. His determination is supported by our own review of the record. The judge heard testimony for purposes of trial from two witnesses, and it is apparent that a trial had commenced. This conclusion is buttressed by the behavior of all concerned, including the judge and counsel, that was consistent with the conduct of a trial. The judge held a jury-waiver colloquy and accepted the defendant’s waiver of a jury trial; witnesses were sworn for trial; and the defendant stipulated to certain elements essential to the Commonwealth’s case. Furthermore, the Commonwealth introduced testimony on the issue of intent, an issue relevant only at trial. If all the Commonwealth’s witnesses had been present, the defendant faced conviction on that day. See Commonwealth v. Gonzalez, supra at 282, quoting Serfass v. United States, supra at 391-392.
The Commonwealth argues that jeopardy did not attach here because Mass. R. Crim. R 15 (c) deprives the court of jurisdiction to start the trial prior to having ruled on any motions subject to appeal. Therefore, claims the Commonwealth, the defendant was not at risk of conviction. However, had all of the Commonwealth’s witnesses been present on May 5, 2006, the defendant would indeed have faced the risk of conviction.
The Commonwealth maintains that it only presented evidence relevant to the suppression hearing, and that any trial evidence was merely “incidental[] overlap[j.” This assertion is incorrect. Evidence regarding intent, such as the amount of cocaine typically ingested by heavy drug users, was introduced by the Commonwealth. The Commonwealth argues also that jeopardy did not attach because the prosecutor was prepared to proceed only with the suppression hearing, and was “surprised” by the judge’s decision to conduct the two procedures simultaneously. These factors have no bearing on the question; jeopardy is not a function of the prosecutor’s state of mind. The Commonwealth contends further that, because the defendant proposed the course of action taken here, he should not benefit. However, once jeopardy has attached, what created the circumstances is irrelevant. See Fong Foo v. United States,
The Commonwealth suggests that allowing “a subsequent trial on the merits” in Superior Court in circumstances such as existed here “strikes the proper balance” between the protections guar
The defendant in this case is not seeking to avoid trial, but rather to have his trial completed before the same trier of fact where it began. See Arizona v. Washington,
2. Effect of combined proceeding on right of interlocutory appeal under Mass. R. Crim. P. 15. Like the double jeopardy clause, the right to interlocutory appeal provided in Mass. R. Crim. P. 15, as appearing in
Litigants must be offered the opportunity to seek interlocutory review as provided in Mass. R. Crim. P. 15. Interlocutory review is the only point at which a defendant may seek review of an erroneous suppression mling that otherwise would subject him or her to the hazards and expense of a trial. Likewise, combining the suppression and trial proceedings may deny the Commonwealth any opportunity for interlocutory review of an adverse motion decision that could lead to an unjustified acquittal without recourse. See Commonwealth v. Boswell,
Additionally, a hearing on a motion to suppress and a trial serve different purposes and impose different burdens of proof on the Commonwealth. At a motion hearing, the Commonwealth’s burden is less than that at trial. At a motion hearing, the Commonwealth need not establish each element of the offense charged beyond a reasonable doubt. See Commonwealth v. Santiago,
3. Proceedings on motions to suppress. As stated, in the instant case, the judge explained that combining a suppression hearing with a trial is common practice in the District Court. We are fully cognizant of the heavy burden on the District Court, the huge caseload, and the need to process cases expeditiously. Nevertheless, in the interests of both the Commonwealth and the defendant, these proceedings must be separated.
This case demonstrates the confusion that results from combining a suppression hearing and a trial. The record is replete with continuing discussions about which portion of the proceeding was included in a party’s objection. The repeated statements limiting the objections for purposes of the trial or the motion illustrate the enormous difficulty, indeed the practical impossibility, of separately considering each piece of evidence only for its appropriate purpose. The ability to apply the proper burden of proof is similarly compromised.
We emphasize, as has been suggested previously, that a motion to suppress and a trial must not be combined. See Commonwealth v. Gonzalez,
Conclusion. The case is remanded to the Supreme Judicial Court for Suffolk County for entry of an appropriate order by
So ordered.
Notes
Rule 15 (c) of the Massachusetts Rules of Criminal Procedure, as appear
The questions reported are:
“1. Does jeopardy attach when testimony is taken at a hearing on a motion to suppress evidence that a judge has ordered, over the objection of the Commonwealth and in violation of Mass. R. Crim. P. 15(c),378 Mass. 882 (1979) [sic], to be heard simultaneously with the trial?
“2. If the answer to question number 1 is in the affirmative, did jeopardy attach on May 5, 2006, in the case of Commonwealth vs. Julius Love, District Court Department, Springfield Division, Docket No. 0623CR000072?”
In reviewing the official District Court transcript, we discovered that much material, including this conference, was not contained in the transcript. We therefore obtained a tape of the proceedings. The official transcript contains significant gaps in much of the witnesses’ testimony that is clearly audible on the tape. The discussion here, while faint, was also audible. The discussion was documented by the prosecutor, who created typed notes of the proceedings after obtaining the District Court tape. These notes are in the record and are relied on by the Commonwealth in its brief. They are not disputed by the defendant.
The docket reflects the defendant’s stipulation regarding the park zone. This docket entry supports the accuracy of the prosecutor’s notes in this respect.
In response to the judge’s inquiry whether she agreed with this proposal, the prosecutor replied, “I understand. Thank you very much.”
Much of Asking’s testimony is not included in the official transcript. The transcript states that the tape of the proceedings was “blank for a few seconds,” although more than twenty minutes of direct testimony and the entire cross-examination were omitted. Despite this statement in the transcription of this officer’s testimony, his entire testimony was audible on the copy of the tape provided to us. In addition, most of Otero’s testimony on redirect examination is missing from the official transcript, yet the transcript does not indicate that anything is missing. A separate page following the certification of the transcript indicates that the tape “ended abruptly”; the tape we received did not. Other portions of Otero’s testimony, marked “inaudible” on the transcript, were clearly audible on the copy of the tape provided to us.
At one point during Askins’s testimony, the judge interrupted him, asking, “Excuse me, for the purposes of trial . . . “; the remainder of the judge’s question was inaudible on the tape.
Parts of one officer’s testimony on this point are included in the transcript. The other officer’s testimony on this issue is audible on the tape but is missing from the transcript.
The record does not reveal the basis for the judge’s retention of personal jurisdiction.
Cases in other jurisdictions cited by the Commonwealth, such as State v. Shaon,
Rule 15 (a) (1) of the Massachusetts Rules of Criminal Procedure, as appearing in
Rule 15 (a) (2) of the Massachusetts Rules of Criminal Procedure, as appearing in
It is appropriate to rule on such motions from the bench and indicate that written findings and rulings will follow.