We are asked to decide whether Anthony Parreira (defendant), whose guilty plea was vacated as the product of judicial coercion, may be retried consistent with principles of double jeopardy. Because the circumstances of the trial do not support an inference that the trial judge acted out of a desire to preempt an acquittal by the jury, and because the Commonwealth presented sufficient evidence to support a conviction on both charges, we conclude that retrial is appropriate.
1. Background, a. Facts. The defendant’s claims require, among other things, consideration of the legal sufficiency of the evidence at trial. We therefore present the background facts in some detail, stating them in the light most favorable to the Commonwealth. See Commonwealth v. Latimore,
At about 5 a.m. the following morning, Albino was awakened by the sound of knocking on his apartment door; he did not respond. Soon thereafter, he heard sounds at his bedroom window. Recognizing the defendant through the window, Albino asked him what he was doing. The defendant indicated that he was looking for Marques. Despite Albino’s protests, and his assurances that Marques was not in the apartment, the defendant opened the window, “forcefully, and jumped right through” it head first.
“Real[ly] angry” and “anxious,” the defendant asked Albino again where Marques was. Not immediately seeing Marques in the room — she was hiding under the covers of Albino’s bed — the defendant searched the rest of the apartment, including Albino’s mother’s room. He eventually returned to the bedroom, this time seeing Marques. The defendant pushed Albino out of the room, and closed and locked the bedroom door.
Through the door, Albino heard the defendant and Marques arguing. When, minutes later,
Shortly thereafter, the defendant “physically moved” Marques, “basically put[ting] her in the bathroom.” Seeing this, Albino contacted a police officer with whom he had a personal acquaintance. He alerted the defendant that he had notified the police, and the defendant left, “speeding” away from the apartment complex.
b. Proceedings. The defendant was charged in the District Court with breaking and entering with the intent to commit a
At trial, the Commonwealth presented testimony from Albino and from two other witnesses, both police officers. Marques did not testify, having not responded to the prosecutor’s repeated attempts to speak with her before trial, and having failed to appear in response to a subpoena.
After the Commonwealth’s final witness had testified, the prosecutor asked for a sidebar, seeking “a minute to see” whether Marques had arrived. While they waited, the judge asked the prosecutor, “[Wjhat’s your last best offer for [the defendant] right now?” The prosecutor reiterated her pretrial offer of a suspended, two and one-half year sentence.
The judge then indicated that he would likely be more severe, saying that, if the defendant were convicted on the assault charge, “he’s got to do time.” Defense counsel responded that, based on his observation of the trial thus far, and unless the judge were to grant his motion for a required finding of not guilty, it “look[ed] like” the defendant would be convicted of assault.
Indicating that he was unlikely to grant the motion, the judge again warned defense counsel that he had not “heard anything why I wouldn’t, based on these circumstances . . . put [the defendant] in jail.” The judge added, “[T]he facts are kind of egregious and, I don’t know why he wasn’t charged with house
The defendant later moved, before the same judge, to vacate his pleas and obtain a new trial. After this motion was granted, the defendant filed a motion to dismiss the charges against him on double jeopardy grounds, arguing both that the evidence against him at the first trial was insufficient to support convictions on either charge and that, regardless of the sufficiency of the evidence, he should not be forced to face retrial where the first trial terminated as a result of judicial impropriety. A different judge denied this motion, and the defendant sought relief in the county court. See G. L. c. 211, § 3. The single justice reserved and reported the case to the full court.
2. Discussion. There is no question, and the Commonwealth does not dispute, that the defendant’s plea was voidable at his option. See Commonwealth v. Colon-Cruz,
a. Alleged judicial error. “Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.” United States v. Tateo, 377 U.S. 463, 466 (1964). We will not lightly preclude the Commonwealth from vindicating the societal interest in a fair adjudication of the defendant’s guilt. Cf. Burks v. United States,
The record does not support the inference that the judge acted to prejudice the defendant. The judge assessed the evidence of guilt as being strong,
The defendant places considerable emphasis on Marques’s failure to appear. While the Commonwealth’s case might well have been stronger had Marques chosen to participate, her failure to appear did not prevent the Commonwealth from presenting a full account of the night’s events through Albino’s detailed testimony. We note that the prosecutor did not ask for a continuance when Marques failed to appear and had not previously sought in-hand service on Marques.
Given this context, the natural inference is that the judge did not act out of concern that the defendant would be acquitted. See Choy v. Commonwealth,
b. Sufficiency of the evidence. When, after the close of the
i. Assault. There is no doubt that the defendant properly could have been convicted of assault on Marques. Albino’s testimony that the defendant “physically moved” Marques to another room sufficiently evidenced an offensive touching and, thus, a battery. Commonwealth v. Burke,
ii. Breaking and entering. The Commonwealth also presented sufficient evidence on the breaking and entering charge. A defendant violates G. L. c. 266, § 16A, if he or she “[1] breaks and [2] enters [3] a building [or other covered structure] [4] with intent to commit a misdemeanor.”
The Commonwealth presented testimony that the defendant opened and jumped through a bedroom window, which plainly suffices to establish the elements of breaking and entering a building. See Commonwealth v. Stephenson,
The crime of assault may be committed in one of two ways: by attempting (or achieving) a battery, see part 2.b.i, supra, or
“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon,
Here, taken in the light most favorable to the Commonwealth, the defendant’s behavior was highly erratic and unstable, and quickly escalating. The defendant, who was “angry” and “anxious,” had come to Albino’s apartment in the middle of the night, looking for Marques. He entered the apartment forcibly, overcoming Albino’s resistance and jumping in headfirst through the window. He then proceeded to search the whole apartment for Marques. On finding her in Albino’s bed, he “pushed [Albino]
To find that the defendant entered with the intent to commit an assault, the jury need not have speculated whether at the time of entry the defendant intended to search the apartment angrily, or to seclude Marques from Albino. It is enough that the jury could have inferred that the defendant intended, notwithstanding Marques’s clear desire to avoid contact with him, to seek her out at 5 a.m., to force his way into a dwelling where she was the overnight guest of another man, and, given his anger, to argue heatedly with her. See Commonwealth v. Ro-bicheau, supra at 181 (defendant “got out of his automobile, stood in the middle of the street in front of [the victim’s] residence, yelled obscene language, and made an obscene gesture”). Such behavior could reasonably have placed Marques in apprehension of an imminently threatened battery.
In Commonwealth v. Gordon, supra at 350, for example, the defendant violated an abuse prevention order by appearing at the victim’s house. When the victim opened her front door to retrieve a note left by him, the defendant rested against the door, preventing it from being closed. We determined that, in light of the preexisting tension between the parties, and because the defendant was subject to a legal duty to keep away from the victim, his imposed physical proximity with the victim was sufficient to support his conviction. Id.
Both Commonwealth v. Gordon, supra, and Commonwealth v. Robicheau, supra, involved defendants prosecuted for abuse, G. L. c. 209A, § 1, and subject to abuse prevention orders. However, the conduct punished by the relevant provision of the abuse statute “closely approximates the common law description of the crime of assault,” and we have treated cases involving either crime interchangeably. Commonwealth v. Gordon, supra at 349.
Further, while both Gordon and Robicheau were under preexisting legal duties to keep away from the victims of their assaults, the defendant, too, was under a legal duty not to enter
Having presented sufficient evidence to support convictions at the first trial, and absent a showing that the trial judge acted out of a desire to prejudice the defendant, the Commonwealth may retry the defendant. The judge was correct in denying the motion to dismiss.
3. Conclusion. The case is remanded to the county court where an order shall enter denying the petition for relief pursuant to G. L. c. 211, § 3.
So ordered.
Notes
Louis Albino attempted to resist and close the window, but the defendant’s fingers were in the way.
Albino was imprecise on the chronology of events but suggested that the entire sequence of events took, “at the most,” twenty minutes.
Although considering Carolina Marques a “necessary and essential witness,” the prosecutor did not obtain in-hand service of the subpoena, and was therefore unable to compel Marques’s appearance by use of a bench warrant.
The relevant portion of the transcript reads:
The judge: “Chapter 265 on the assault if he’s hooked on [sz'c] he’s got to do time.”
Defense counsel: “I thought that was part of the [inaudible] — maybe he’s not going to get off on the A&B, but it looks like he’s going to get hooked on the assault unless something strange happens.”
Although the import of defense counsel’s statement is arguably ambiguous, the most natural reading is that he thought it likely the jury would vote to convict on the assault charge, the more serious of the two charges. This is the interpretation the Commonwealth adopts in its brief, and the defendant has not taken issue with that interpretation.
The defendant does not contend that he has suffered irremediable prejudice “that prevents the possibility of a fair [rejtrial.” See Commonwealth v. Lam Hue To,
The United States Supreme Court has not “specified] factors that might guide the lower courts in such an analysis. Several Circuit Courts, however, have considered the following factors: (1) whether [there was] reason to believe the jury might acquit the defendant; (2) whether the government stood to gain from a mistrial; and (3) whether the prosecution proffered some plausible justification for its actions.” United States vs. Archibald, U.S. Dist. Ct., No. Crim. A. 02-CR-335-1 (E.D. Pa. Feb. 26, 2003), and cases cited. See, e.g., United States v. Barnard,
The judge expressed strong skepticism at the defendant’s motion for a required finding, explaining, “Let me see, she’s in bed, he breaks in, he threatens the man she’s with, and he pushes her into a bathroom, works for me.”
Toward the end of the sidebar conference, the prosecutor indicated that Marques could not be located, and said, “[T]he Commonwealth is going to rest.”
The defendant was not charged with criminal trespass, a distinct statutory offense. See G. L. c. 266, § 120.
The fact that a defendant ultimately commits a crime within the premises is, in general, strongly corroborative of his previous criminal intent. Commonwealth v. Carter,