*1
Richard Gibson . August Suffolk. 1980. 1980. May & Hennessey, Kaplan, Present: C.J., Quirico, Braucher, Wilkins, Liacos, Abrams, JJ. Law, Court, jeopardy. Supreme Superin- Constitutional Double Judicial Practice, Criminal, sys- tendence of inferior courts. “Two-tier” court tem. placed merely only
A defendant jeopardy was not because evi- allegedly avenue of relief from a conviction based on insufficient pur- dence at a bench trial was a trial de nova in the 1974, c. through suant to G. L. c. St. 167. J., J., joined, dissenting. with whom Liacos, Abrams, [374-376] Court, 277, 47A, Although pursuant to G. L. c. as amend- 1978, 478, 298, appropriate ed was the forum for con- trial, the jeopardy sideration of a double claim asserted after a bench defendant had no valid double claim even if the evidence at mo- his bench was insufficient to warrant his conviction and his dismiss, therefore, tion to on merits. should have been denied [376-377] commenced in the Supreme Judicial Civil action
for the of Suffolk on county April The case was reported by Quirico, J. for the
Steven M. Wise petitioner. Assistant District for the Robert M. Attorney, Payton, Commonwealth. Martin R.
Richard
William
Rosenthal
Hayes,
Leahy,
J.
J.
6-
M.
for the Massachusetts Defenders
Broivnlow
Speer,
Committee,
curiae,
brief.
amicus
submitted a
we decide
in-
This is the second case
today
J.
Wilkins,
he would be denied his
the claim an accused that
volving
if
twice in
constitutional
being placed
right against
new trial is offered as the
relief from his conviction
District,
trial in a
at a bench
insufficient
presented
or
Court.
Municipal,
Juvenile
Gibson v. Commonwealth. 4, 1978, the On whom we shall call May petitioner, *2 defendant, convicted, was after a bench trial in the Second Division of the District Court Plymouth Department sitting of motor a vehicle without Hingham, using authority L. of 90, c. and stolen (G. 24) receiving goods (G. § c. 266, was recorded on The 60). proceeding tape. § moved for a of not on both finding guilty charges at the close of the Commonwealth’s case. He claimed an for a trial de nova before a of twelve in the appeal Su- jury Court in perior 278, 18, Plymouth See G. L. c. County. St. He moved in the Su- Court for perior dismissal of and for charges judgments on the there acquittal that was insuffi- charges, alleging cient admissible evidence first, bench, at his or trial to war- rant a conviction. He that a trial de nova would argued violate his double him would due jeopardy rights deny process law under the Fourteenth Amendment to the Constitution of the United States.
In a
considered order
carefully
the motion to
concerning
dismiss, entered on
9, 1979, a
April
Court noted
of the decision in
light
Burks v. United
States,
The defendant
thereafter
filed a petition
seeking
under this court’s
power
general superintendence. G. L.
3. A
the entire
single
case to the
justice reported
court,
full
three
reciting
that are set
principal questions,
forth in the
These
margin.1
concern
questions
(a)
1“(a) Whether under the
two-tier
for the trial of criminal cases
in effect when the defendant was tried in the District Court and
ap
his
of the defendant to raise by pretrial Court the issue of the his insufficiency trial, bench (b) jurisdiction motion, hear such a the defendant’s double (c) if the evidence at bench trial was not sufficient rights doubt. a reasonable beyond support findings guilt time when the former The defendant’s trial occurred at a was in effect in the Commonwealth. in the Dis Under that a defendant was tried first procedure, and, if found trict Court without a guilty, appeal jury to the of twelve or a trial before jury before a of six. G. L. c. District Court c. 167. The did amended through *3 a trial in the first instance as have the option having the case under the current two-tier is system. ante the of the Burks case
We conclude that
apply
principles
the evi-
determination that
when there is an
only
appellate
neither the former
dence at trial was insufficient. Because
trial
nor the
one
any
Massachusetts
system
present
provides
nova,
for a trial de
the defendant
peal
Superior
therefrom to the
Court,
entitled,
the
in the
to raise
issue
by pretrial
was
a
the District Court was sufficient
whether the evidence which was before
the
was
finding
guilty
to
in the latter court that
support
him;
charged against
doubt of the crimes
beyond a reasonable
receive,
jurisdiction
to
hear
Whether the
“(b)
motion;
decide such a
in
put
not to be twice
right
the defendant’s constitutional
“(c) Whether
to
required
if he were
for the same offense would be violated
to which the
any complaint
in the
Court on
as
stand trial de nova
trial in the
prior
the Commonwealth thereon in
presented by
beyond a
support
finding
guilty
to
a
Court was not sufficient
District
States,
(1978).”
vided it has been further determined that the has Commonwealth had a and opportunity full fair to present whatever evidence it could upon assemble first the occasion where the had in placed been jeopardy.” position attorney of the district the Plymouth for district on contrary this is to the taken point position by attorney the district the Suffolk in Lydon, supra, district the and A v. Com- Juvenile (No. 2), post (1980), monwealth 379 cases today. decided Mass. Commonwealth,
Gibson v.
in
v.
considers
Our opinion Lydon
supra,
that the double
clause
rejects
proposition
Amendment,
to the States
the Fifth
made applicable
Amendment,
in all
a State to
Fourteenth
requires
provide,
instances, a
for review
sufficiency
procedure
at
Much
of that
a bench trial.
reasoning
here.
our
at
we
In
opinion applies
opinion,
has
noted that
two-tier court
withstood
system
already
“[t]he
double
constitutional challenge
jeopardy grounds]
[on
Massachusetts,
United
Court.
v.
States Supreme
Ludwig
We come then whether question the former two-tier system present on Court his based clause. challenge was the think that We appropriate least until the is forum for such a claim and matter there, this court need not passed grant single justice this court’s relief under superintendence power general Commonwealth, 366 Whitmarsh (G. 3).§ *5 212, dismissed, 421 957 Mass. (1974), appeal filed in the At time the defendant’s motion was (1975). 277, G. L. c. Court and considered there (see Mass. 372 1978, 47A, 478, c. as amended § [effective § 478, 1, 1978, January (St. 343)]), applicable § in criminal . . . statute provided “[a]ny proceedings which is of determination without objection capable trial of the issue raised before trial mot be may general ion.”4 to defendant’s motion dismiss Consequently, should been considered on merits in the properly Commonwealth, Court. See Lydon supra. Because the defendant has no valid double claim if even the evidence at his bench trial was insufficient convictions, warrant his motion dismiss should have and, been denied in accordingly, under the general superintendence court is powers 211, under 3, G. L. c. appropriate. petition § should be dismissed.5
So ordered. with Abrams, whom I (dissenting, J., joins). J. Liacos, dissent for the reasons stated in respectfully my opinion Commonwealth, Lydon I would remand supra the case to who either rule on single justice the suf- of the evidence or ficiency permit
Court to reconsider defendant’s motion to dismiss. Upon a determination that the at the evidence bench trial was in- sufficient, the court should allow the I dismiss. need not reach the whether double question bars a retrial when the element tending prove 277, 47A, 4Today, G. L. c. in St. appearing 39 (by amended, 1979), July effective deferring many proce been Procedure, dural matters to the Massachusetts Rules Criminal which 1,1979. were July effective on result The same is called for under the cur rent See supra system. from R. quoting Mass. Grim. P. 13 (c) Mass. 873 5Because of our conclusion that the double jeopardy clause does not provide a valid foundation for the argument, defendant’s we need not decide whether the record in fact demonstrates that the evidence was in sufficient to warrant defendant’s convictions. *6 381 Mass. v. Commonwealth.
Gibson improperly at the first trial. admitted the crime was (1978). I add 19, 26 n.9 Massey, 437 U.S. Greene any arguable majority’s if the that validity majority opinion less here is even whatsoever, option under G. justifiable. no This defendant had but was 278, 18, obtaining prior a con- undergo required a bench Supra. jury. stitutionally protected right to trial