Com. v. Cassidy, 90-P-436

• Decision Date: 12 February 1991
• Docket Number: No. 90-P-436,90-P-436
• Citation: 29 Mass.App.Ct. 651,564 N.E.2d 400
• Parties: COMMONWEALTH v. Stephen CASSIDY.
• Court: Appeals Court of Massachusetts

Page 400

564 N.E.2d 400

29 Mass.App.Ct. 651

COMMONWEALTH v. Stephen CASSIDY.

No. 90-P-436.

Appeals Court of Massachusetts Hampshire.

Argued Oct. 12, 1990.

Decided Dec. 28, 1990.

Further Appellate Review Granted

Feb. 12, 1991.

S. Thomas Martinelli, Springfield, for defendant.

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

Before KASS, FINE and IRELAND, JJ.

IRELAND, Justice.

This case was reported to us by a Superior Court judge in response to a motion to dismiss an indictment on double jeopardy grounds after a trial ended in a mistrial. We must determine whether "manifest necessity" justified the declaration of a mistrial. After jury deliberations began, the jury foreperson informed the trial judge about a previously undisclosed experience of one juror that raised a question of possible juror bias. After two conferences with counsel, the judge, over defense counsel's objection, ¹ declared a mistrial. The case was then scheduled for retrial, whereupon the defendant sought dismissal of the indictment on the ground that a new trial would violate his right to be free from double jeopardy. We conclude that the trial judge did not abuse his limited discretion in declaring a mistrial on grounds of "manifest necessity."

The facts are not in dispute. The defendant was indicted for rape in December, 1988. The case went to trial and to a jury on October 26, 1989. At about 1:00 P.M. on the second day of deliberations, during the lunch recess and after approximately seven hours of jury deliberation, the judge received a message from the jury foreperson: "We have just learned that one of the jurors was involved in a rape case, and her decision is being affected by her past." Because the court reporter and counsel were at lunch, the judge went into the jury room with the clerk and instructed the jury to stop deliberating, took the verdict slips, and left. About six minutes later, the judge received a second note from the jury foreperson, informing him that "[n]ow the juror says she was only molested and it never went to [c]ourt." Court resumed at 2:00 P.M., and the judge called counsel into chambers to discuss these two messages. The judge expressed his concern that the juror (Juror X) had not responded when the judge had asked all the prospective jurors if any of them had ever been the victim of a sexual assault. Our review of the record shows that the judge considered questioning Juror X about the contents of the notes. He concluded, however, that, given her failure to respond to the general question at impanelment, he was not confident of Juror X's ability to carry out her oath as a juror, no matter what she might say. Accordingly, the judge dismissed the possibility of questioning Juror X about the contents of the notes ² or her ability to function as an impartial juror. The record further indicates the judge's concern about the likelihood that revelation of Juror X's previous experience during the deliberations had irreparably tainted the jury.

A brief recess followed, during which defense counsel met with the defendant and the prosecutor conferred with her colleagues in the district attorney's office. After the recess, defense counsel made clear that the defense wished to proceed with the jury that had been deliberating, and even suggested ways in which to accomplish that. ³ The judge apparently considered the impact Juror X might have had on the other jurors and decided that the jury was "too tainted to continue." He then declared a mistrial.

The defendant moved to dismiss the indictment on the ground that, under the particular circumstances, his right to be free from double jeopardy would be violated by subjecting him to a second criminal trial. After a hearing on the motion, a second Superior Court judge reported, under Mass.R.Crim.P. 34, 378 Mass. 905 (1979), the question whether declaration of a mistrial was warranted.

The principal issue raised here ⁴ is whether the first trial judge erred when he ruled that manifest necessity justified the declaration of a mistrial. "Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the 'manifest necessity' standard first encountered in Justice Story's opinion for the Court in United States v. Perez, 9 Wheat. 579, 580 (1824)." Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). Accord Commonwealth v. Steward, 396 Mass. 76, 78-79, 483 N.E.2d 1091 (1985). ⁵ "The necessity for a mistrial must be manifest; there must be a high degree of necessity; but it need not be absolute." Commonwealth v. Reinstein, 381 Mass. 555, 561, 409 N.E.2d 1307 (1980), citing Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). ⁶

Appellate deference to a "trial judge's exercise of discretion that a 'manifest necessity' exists for a mistrial" is appropriate "only if it is clear from the record that the judge has given careful consideration to the available alternatives and to the defendant's interest in having the trial concluded in a single proceeding." Commonwealth v. Steward, 396 Mass. at 79, 483 N.E.2d 1091, quoting from Barton v. Commonwealth, 385 Mass. 517, 519, 432 N.E.2d 524 (1982). "The discretion of a trial judge where double jeopardy is concerned is more restricted than the discretion commonly granted to trial judges for the more routine matters that arise before, during, and after trials." Commonwealth v. Steward, 396 Mass. at 79, 483 N.E.2d 1091. Accord Jones v. Commonwealth, 379 Mass. 607, 617, 400 N.E.2d 242 (1980).

There is no "crisp" formula for determining when "manifest necessity" arises. Commonwealth v. Reinstein, 381 Mass. at 560-561, 409 N.E.2d 1307. Commonwealth v. Steward, 396 Mass. at 79, 483 N.E.2d 1091. "Two principles emerge for guidance: (1) counsel must be given full opportunity to be heard and (2) the trial judge must give careful consideration to alternatives to a mistrial." Ibid. In the instant matter, the trial judge gave counsel a full opportunity to be heard, although he indicated a predisposition to a mistrial. He may well have also considered the Commonwealth's right to have a fair trial and factored the Commonwealth's right into his determination that a mistrial was warranted. Commonwealth v. Steward, 396 Mass. at 79, 483 N.E.2d 1091, quoting from Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830 (public interest affords prosecutor one full and fair opportunity to present evidence to impartial jury).

The question remains whether the trial judge gave sufficient consideration to available alternatives to a mistrial. "An exercise of sound discretion by the trial judge, particularly if it involves evaluation of the significance of juror bias, is entitled to appellate deference." Commonwealth v. Denson, 16 Mass.App.Ct. 678, 681, 454 N.E.2d 1283 (1983). See and contrast United States v. Pierce, 593 F.2d 415, 419 (1st Cir.1979) ("we recognize broad discretion in the [trial] court to determine that a jury has been prejudiced beyond repair, and we would not overturn a supported and reasoned exercise of discretion even if, on the basis of 20-20 hindsight, we might have reached the opposite conclusion"). When the trial judge considered and then refused to conduct the requested voir dire, he could have determined that there was an actual risk of implied bias. The circumstances of this case raised this risk in three ways. First, there was a question as to Juror X's ability to function impartially. Implied bias is "fact-sensitive, ... the mere failure of a juror to disclose his or her prior experience as a criminal victim does not automatically entitle the defendant to a new trial." Commonwealth v. Amirault, 399 Mass. 617, 630, 506 N.E.2d 129 (1987). Instead, it must be "more probable than not that the juror was biased against the [defendant]." Ibid. However, "[i]t is ... likely that bias would be implied to a juror who has been the victim of a similar crime and has consciously concealed that fact from the parties or the court." Id. at 628 n. 5. Second, there was a question as to the remaining jurors' ability to proceed impartially in light of any comments Juror X could have made to them. An inquiry on voir dire could have revealed, improperly, the status of the jury deliberations. The third way in which the risk of implied bias arose was the possibility that, if the trial judge removed Juror X and allowed the trial to proceed, the remaining jurors would regard his action as disapproval or rejection of any opinions Juror X may have imparted to other jurors. See Commonwealth v. Gonzalez, 28 Mass.App.Ct. 10, 14-15, 545 N.E.2d 862 (1989). In other words, the jurors might have, inappropriately, read the judge's decision to allow the deliberations to proceed as a "silent communication" regarding the validity or applicability of Juror X's opinions to the issue of rape at trial. See ibid., citing Commonwealth v. Webster, 391 Mass. 271, 275-278, 461 N.E.2d 1175 (1984) (court must be careful not to interfere or signal its view of evidence).

In summary, while the trial judge was faced with a difficult decision, he gave careful consideration to arguments of counsel, and his conclusion that the jury probably sustained a taint which was not possible to eradicate was, in the circumstances, sufficient justification for the declaration of the mistrial. The motion to dismiss the indictment is to be denied.

So ordered.

1 Counsel did not formally object but pressed the judge to consider using an...