Berry v. Com.

• Citation: 473 N.E.2d 1115,393 Mass. 793
• Parties: Albert BERRY v. COMMONWEALTH et al. 1
• Decision Date: 31 January 1985
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1115

473 N.E.2d 1115

393 Mass. 793

Albert BERRY v. COMMONWEALTH et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 3, 1984.

Decided Jan. 31, 1985.

Michael Avery, Boston, Mass., for plaintiff.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

Albert Berry was indicted for the murder in the first degree of his twenty month old daughter. A jury trial followed. At the conclusion of the Commonwealth's case, Berry moved for a required finding of not guilty. The judge allowed the motion as to murder in the first degree, but he denied it as to murder in the second degree and manslaughter. After the defense presented its case, the judge submitted the case to the jury. The jury deliberated for four days without reaching a verdict, and, without objection by Berry, the judge declared a mistrial. As the Commonwealth prepared to retry Berry, he filed in the Superior Court a motion to dismiss the indictment on the ground of double jeopardy. A judge denied Berry's motion, and Berry sought relief from a single justice of this court. The single justice stayed the Superior Court proceedings and reserved and reported the case to the full bench without decision. We remand the case to the Supreme Judicial Court for the county of Suffolk for entry of a judgment directing that the indictment be dismissed.

Berry concedes that, if the Commonwealth presents evidence legally sufficient to convict, double jeopardy principles do not bar retrial after a mistrial declared because of a "hung jury." Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974). Berry argues, however, that in this case the Commonwealth did not present sufficient evidence, and that, therefore, double jeopardy principles do not allow the Commonwealth a second chance. We agree.

In making a determination whether the Commonwealth presented sufficient evidence to warrant a finding of guilt, "[the] question is 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" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Based on the evidence most favorable to the Commonwealth, the jury could have found the following facts. The victim, Shurasha Campbell, twenty months old when she died, suffered many injuries throughout her short life. She lived in an apartment on Columbia Road in the Dorchester section of Boston with her mother, Dorothy Campbell, Campbell's other daughter, Natasha, and Berry. Berry stands 6 feet, 2 inches tall and weighs 160 pounds. Campbell is 5 feet, 2 inches tall and weighs 100 pounds. Berry knows martial arts.

Before moving to Columbia Road, the family lived on the first floor of a house on Blakeville Street. One day in the late spring or early summer of 1981, the son of the occupant of the second floor visited the house. He heard Shurasha crying downstairs for 30 to 45 minutes. Berry yelled, "Shut up. Shut up. Shut up," and then there was a loud thud. After that, the baby cried loudly as if in pain.

On June 4, 1982, Berry went into a room of his apartment where Shurasha was crying. Natasha heard what sounded like "somebody hitting," and the crying stopped.

On June 5, 1982, the day of Shurasha's death, Berry remained in the apartment with Shurasha and Campbell until 11 A.M. At about 1 P.M. Campbell carried Shurasha, unconscious, out of the apartment. Later that evening, doctors pronounced Shurasha dead.

Dr. George Curtis, who performed an autopsy on Shurasha, testified that she died from injuries caused by blows of "great," "severe" force, and that such blows were "consistent with karate or martial-art-type blows."

The Commonwealth argues that "[i]t was up to the jury to decide which of the persons in the household caused Shurasha's death, as there was no question that she died from a severe beating, and no question that someone had to have administered the beating to her." ² Relying on Commonwealth v. Hunter, 18 Mass.App.Ct. 217, 219, 464 N.E.2d 413 (1984), the Commonwealth further argues that it need not prove that no one other than the defendant could have performed the act.

"We are ... mindful that '[i]n order to convict on circumstantial evidence, it is not necessary to show that it was not in the power of any other person than the defendant to commit the crime.' Commonwealth v. Leach, 156 Mass. 99, 101-102, 30 N.E. 163 [1892]. It is, however, equally well established that 'if, upon all the evidence, the question of the guilt of the defendant is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand.' Commonwealth v. O'Brien, 305 Mass. 393, 401, 26 N.E.2d 235 [1940]. When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. Commonwealth v. Carter, 306 Mass. 141, 147, 27 N.E.2d 690 [1940]. Commonwealth v. Smith, 342 Mass. 180, 183, 172 N.E.2d 597 [1961]." Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965).

Even if, contrary to Berry's argument, the evidence warrants a finding that Berry had the opportunity to kill Shurasha, the additional evidence that Berry had struck her on two earlier occasions and that he had the capability to strike her with great force "consistent with karate or martial-art-type blows," is not enough to warrant a finding beyond a reasonable doubt that he, and not Campbell, killed her. For all that appears, Campbell had equal opportunity to kill Shurasha, was fully capable of striking her with great force consistent with karate or the martial arts, and was as disposed as Berry was to do so. Whether Berry killed Shurasha is, on the evidence, speculative. We conclude that no rational trier of fact could have found Berry guilty of murder or manslaughter. Before the judge gave the case to the jury, Berry moved for a required finding of not guilty, and, after the judge declared the mistrial, Berry moved for dismissal of his indictment. Under those circumstances, common law double jeopardy principles bar his retrial.

In order for a defendant to be placed twice in jeopardy, his original jeopardy must have terminated. Whether the defendant's jeopardy has terminated depends on whether, in light of double jeopardy policies and principles, the proceedings against him have reached a point at which they should cease. "Even if [a] first trial is not completed [because the judge declares a mistrial], a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial." Arizona v. Washington, 434 U.S. 497, 503-505, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978). However, a defendant's right not to be retried is subordinate to "society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws." Id. at 509, 98 S.Ct. at 832. See Thames v. Commonwealth, supra.

In this case, the Commonwealth has had one full opportunity to obtain Berry's conviction. It presented all the available evidence it chose to present. On the basis of that evidence, acquittal was required as a matter of law. In those circumstances, the Commonwealth cannot fairly complain that the judge's declaration of a mistrial when the jury could not agree deprived it of its opportunity to obtain a conviction. The jury could not legally have reached any verdict but not guilty. Application of the general rule prohibiting repeated trials for the same offense gives to Berry the protection that double jeopardy principles are supposed to give, while visiting no concomitant unfairness on the Commonwealth. "Since we necessarily afford absolute finality to a jury's verdict of acquittal--no matter how erroneous its decision--it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.... Given the requirements for entry of a judgment of acquittal, the purposes of the [common law of double jeopardy] would be negated were we to afford the government an opportunity for the proverbial 'second bite at the apple.' "...