Choy v. Com.

• Decision Date: 22 February 2010
• Docket Number: SJC-10206
• Parties: Frances CHOY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

921 N.E.2d 942

456 Mass. 146

Frances CHOY v. COMMONWEALTH.

SJC-10206

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 10, 2009.

Decided February 22, 2010.

Joseph F. Krowski, Brockton, for the plaintiff.

John E. Bradley, Assistant District Attorney (Karen O'Sullivan, Assistant District

Attorney, with him) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

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 the jury were unable to reach a unanimous verdict. Following the mistrial, the defendant moved to dismiss all the indictments on the ground that the evidence at trial had been insufficient to warrant her conviction of either crime, and therefore that a retrial would violate the double jeopardy protections of the Fifth Amendment to the United States Constitution¹ and Massachusetts common law.² The trial judge denied the motion. The defendant then sought relief from a single justice of this court pursuant to G.L. c. 211, § 3.³ The single justice denied the petition without a hearing, and the defendant now appeals the denial to the full court.

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.⁴ We reject the defendant's argument that she cannot be retried at all, and for reasons we discuss, we do not decide the double jeopardy issue raised by the defendant's alternative argument.

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 responded to the defendant's 911 call reporting a fire in the home. The first fire fighters to arrive at the scene observed smoke rising out of the residence and Kenneth Choy looking out a second-floor window. Using a ladder, the fire fighters assisted Kenneth Choy out of the house. They then saw the defendant's head leaning out a different second-story window. When fire fighters asked if there was anyone left inside the house, the defendant responded that her parents remained in the building. The defendant did not appear upset and displayed no visible signs of injury.

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 burns.

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 live 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 bedroom after the fire, contained a step-by-step checklist on how to set the house on fire. He told police that he made the notes at the defendant's request as part of a joint plan to set fire to their home.

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.⁵ The judge denied the motion.

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, 395 U.S. 784, 793-796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Commonwealth v. Cassidy, 410 Mass. 174, 176, 571 N.E.2d 383 (1991). However, the protection against double jeopardy permits a second trial where the first trial terminates in a mistrial due to "manifest necessity." Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The jury's failure to reach a unanimous verdict is an example of manifest necessity. Commonwealth v. Andrews, 403 Mass. 441, 448-449, 530 N.E.2d 1222 (1988). There is, however, an exception to the rule that a defendant can be retried after a mistrial resulting from a jury's failure to reach a verdict when the evidence presented in the first trial was insufficient to sustain a conviction. In such cases, the defendant is entitled to a judgment directing that the indictment be dismissed. Berry v. Commonwealth, 393 Mass. 793, 794, 473 N.E.2d 1115 (1985).⁶ Accordingly, we must examine the evidence presented at the defendant's trial to determine if it was sufficient to support a guilty verdict.

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, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Murder is defined as the "unlawful killing of a human being with malice aforethought." Commonwealth v. Campbell, 375 Mass. 308, 312, 376 N.E.2d 872 (1978). A murder qualifies as murder in the first degree if it is committed with "deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life." G.L. c. 265, § 1. Arson occurs when someone "wilfully and maliciously sets fire to, burns, or causes to be burned, or . . . aids, counsels or procures the burning of, a dwelling house." G.L. c. 266, § 1. We are mindful that in arson cases the Commonwealth often can prove guilt "only by a `web of circumstantial evidence' that entwines the suspect in guilt beyond a reasonable doubt." Commonwealth v. Robinson, 34 Mass.App.Ct. 610, 617, 614 N.E.2d 697 (1993), quoting Commonwealth v. Blonde, 29 Mass.App.Ct. 914, 916, 556 N.E.2d 1049 (1990).

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 which were for the jury, that the defendant had a motive. She told the police that she believed she was the beneficiary of a life insurance policy. She explained to the officers that her parents would not let her live away from home while she attended college, would not let her see her boy friend, and assigned her household chores that she found burdensome and time consuming. In addition, multiple witnesses testified that the defendant remained calm throughout the fire and its aftermath. One police officer observed that the defendant focused a great deal of her attention on the well-being of her possessions. Finally,...