Com. v. Cassidy

• Decision Date: 16 May 1991
• Citation: 571 N.E.2d 383,410 Mass. 174
• Parties: COMMONWEALTH v. Stephen P. CASSIDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 383

571 N.E.2d 383

410 Mass. 174

COMMONWEALTH v. Stephen P. CASSIDY.

Supreme Judicial Court of Massachusetts Hampshire.

Argued April 2, 1991.

Decided May 16, 1991.

S. Thomas Martinelli, Springfield, for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

The defendant in this case, Stephen P. Cassidy, was indicted for rape. He was first tried in October of 1989. After four days of testimony and approximately one full day of deliberations, the judge declared a mistrial, thus ending the first proceeding. Cassidy thereafter filed a motion to dismiss the indictment on the ground that further proceedings would violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. The motion judge reported the matter to the Appeals Court, ¹ which held that a second trial would not violate the Constitution because the judge at the first trial was faced with "manifest necessity" for a mistrial. Commonwealth v. Cassidy, 29 Mass.App.Ct. 651, 564 N.E.2d 400 (1990). We granted the defendant's motion for further appellate review, and we too determine that the defendant may be constitutionally retried on the rape indictment.

The first trial in this case began on October 26, 1989. While selecting a jury, the trial judge asked the potential jurors, among other things, whether they or any member of their family had "ever been the victim of a sexual assault or involved in any way in a rape or a prosecution for rape." All of the jurors who were empaneled responded in the negative.

On November 2, 1989, the second day of deliberations, the jury sent a note to the judge which read, "We have just learned that one of the jurors was involved in a rape case, and her decision is being affected by her past." The prosecutor, defense counsel and court reporter had left for lunch, so the judge, accompanied by the clerk of courts and two court officers, went to the jury room and instructed the jury to stop deliberating. Shortly thereafter, the jurors sent a second note to the judge which read "[n]ow the juror says she was only molested and it never went to court."

When the court reporter, defense counsel, and prosecutor returned, the judge held a lobby conference during which he read the two notes to the attorneys. The judge began the discussion of the matter by stating that he believed the jury was too tainted for the trial to continue. He then asked the prosecutor and defense counsel their opinions of the matter. A brief recess was taken to allow the prosecutor and defense counsel to consult with various interested parties.

When the lobby conference reconvened, the defense counsel asked the judge to attempt to save the case by conducting a voir dire of the suspected juror to determine what had actually happened, replacing her with one of the alternates, and asking the remaining jurors whether they felt they could proceed in an unbiased manner. Defense counsel also asked the judge to save the case in "any other way you might think of."

The judge declined to question the suspect juror or the rest of the jury. He decided that, because the jury had been deliberating for almost seven hours, it would be impossible to determine what effect the statements of the suspected juror may have had on the rest of the jury. The judge also decided that it would be extremely difficult, if not impossible, to question the jury about such an effect without inquiring into the deliberative processes of the jury. After hearing arguments from both defense counsel and the prosecutor, the judge declared a mistrial. The defendant subsequently moved to dismiss the indictment on the basis of the double jeopardy clause of the Fifth Amendment to the United States Constitution.

The Fifth Amendment to the United States Constitution reads, in part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb." The United States Supreme Court has held that this restriction is applicable to the states through the due process clause of the Fourteenth Amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 793-796, 89 S.Ct. 2056, 2061-63, 23 L.Ed.2d 707 (1969). The common law of Massachusetts has long provided similar protection to criminal defendants. See Commonwealth v. Bowden, 9 Mass. 494 (1813); Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974); Commonwealth v. Smith, 404 Mass. 1, 4, 532 N.E.2d 1207 (1990).

The general rule for determining whether the grant of a mistrial over the defendant's objection ² in one trial will bar the commencement of a second trial was put forth by Justice Story in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824): "We are of opinion, that the facts constitute no legal bar to a future trial.... We think, that in all cases of this nature, the law has invested Courts of Justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere."

The emphasis on the "sound discretion" of the trial judge in declaring a mistrial was underscored by the Supreme Court in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). There the Court noted, "Where, for reasons best deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment." Id. at 368, 81 S.Ct. at 1526.

The Supreme Court further explained the level of appellate scrutiny appropriate to cases involving mistrials in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The Court noted that different levels of appellate review were appropriate for different types of cases. At one extreme, warranting strict scrutiny, are cases where "the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe the prosecution is using the superior resources of the state to harass or to achieve a tactical advantage over the accused" (footnote omitted). Id. at 508, 98 S.Ct. at 831-32. At the other extreme, warranting great deference to the trial judge's determination, are mistrials "premised upon the trial judge's belief that the jury is unable to reach a verdict." Id. at 509, 98 S.Ct. at 832.

This court, interpreting the Federal decisions, has stated that "[a]ppellate deference will be accorded the trial judge's discretionary determination that 'manifest necessity' exists only if the record reflects that the trial judge gave reasoned consideration to the various available alternatives as well as to questions of fairness before declaring a mistrial." Jones v. Commonwealth, 379 Mass. 607, 622, 400 N.E.2d 242 (1980). "Two principles emerge for guidance [in reviewing a finding of manifest necessity for a mistrial]: (1) counsel must be given full opportunity to be heard and (2) the trial judge must give careful...