Com. v. Clemmons

• Decision Date: 13 May 1976
• Citation: 346 N.E.2d 864,370 Mass. 288
• Parties: COMMONWEALTH v. Charles CLEMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 864

346 N.E.2d 864

370 Mass. 288

COMMONWEALTH

v. Charles CLEMMONS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1975.

Decided May 13, 1976.

Geoffrey C. Packard, Boston (John G. Landes, Boston, with him), for defendant.

D. Lloyd Macdonald, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

In this appeal the defendant challenges his conviction in the Superior Court of possession of heroin on the ground that he had previously been put in jeopardy for the same offense in the Municipal Court of the City of Boston. His appeal is before this court under the provisions of G.L. c. 278, §§ 33A--33G. We sustain the defendant's contention and we order a judgment of not guilty to be entered.

We summarize the facts as determined from a stipulation filed by the parties and the transcript of the proceedings below. On December 22, 1973, the defendant was arrested by members of the drug control unit of the Boston police department. He was booked on a charge of possession of heroin with intent to distribute.

The application for a complaint, typed by a police officer, indicated the charge to be under G.L. c. 94C, § 32 (possession of heroin with intent to distribute), but the accompanying narrative in the application described the offense as only possession of heroin. Detective Joseph Smith of the drug control unit presented this application for a complaint to a judge of the Municipal Court on December 24, 1973. Detective Smith, at the judge's request, recounted the circumstances surrounding the defendant's arrest, including the fact that the defendant was arrested in the process of what the police believed to be a sale of drugs and that twenty-six 'decks' of heroin were seized either on or near the defendant. The judge initialed the application for a complaint, whereupon it was forwarded to the clerk's office.

The clerk, failing to note the discrepancy in the application between the statutory charge and the narrative charge, issued a complaint charging the defendant with simple possession of heroin. Detective Smith signed the complaint under oath administered by the clerk.

On December 24, 1973, the defendant was arraigned in the Municipal Court on the charge of possession of heroin, with Detective Smith in attendance. On January 30, 1974, a proceeding was held in the Municipal Court at which Detective Frost one of the arresting officers, was the prosecutor. It would appear that Detective Frost believed that the complaint charged possession of heroin with intent to distribute in violation of G.L. c. 94C, § 32, an offense outside the final jurisdiction of the Municipal Court (see G.L. c. 218, § 26) and that, therefore, a probable cause hearing was being held. See G.L. c. 218, § 30. The defendant and his attorney believed that a trial on the charge of possession, an offense within the court's jurisdiction, was commencing. No statement as to the nature of the proceedings was made by the judge or anyone else. ¹

Detective Frost was sworn and testified as the Commonwealth's first witness with respect to the events surrounding defendant's arrest. Prior to cross-examination of Detective Frost by defense counsel, the presiding judge asked why the complaint was for simple possession and not possession with intent to distribute. Detective Frost responded that he believed that the complaint was for possession of heroin with intent to distribute.

Over the defendant's objection, the judge allowed the complaint to be amended so as to read possession of heroin with intent to distribute. The proceeding was discontinued, and on March 19, 1974, a probable cause hearing was held before this same judge of the Municipal Court. The judge, finding probable cause, bound the defendant over to the grand jury, which subsequently returned an indictment charging the defendant with possession of heroin with intent to distribute.

The defendant's motion to dismiss the indictment on the ground of prior jeopardy was denied by a judge in the Superior Court for Suffolk County. Thereafter, the defendant was tried by a jury and found guilty on so much of the indictment as charged possession of heroin. The defendant was sentenced to two years in a house of correction, execution of which was stayed pending appeal.

At the outset, we briefly address the question whether the initial proceeding in the Municipal Court constituted a trial on the merits, for if a preliminary hearing to determine probable cause was being conducted, jeopardy could not attach under the reasoning of Commonwealth v. Britt, 362 Mass. 325, 330, 285 N.E.2d 780 (1972), and Commonwealth v. Mahoney, 331 Mass. 510, 511--512, 120 N.E.2d 645 (1954). See Burhoe v. Byrne, 289 F.Supp. 408, 411 (D.Mass.1968). There is no question that the judge in the Municipal Court had before him a valid complaint charging the defendant with simple possession of heroin. This crime, as defined in G.L. c. 94C, § 34, is a misdemeanor within the final jurisdiction of the Municipal Court. There is no indication, as required by Corey v. Commonwealth, 364 Mass. 137, 141 n.7, 301 N.E.2d 450 (1973), that the judge was considering declining jurisdiction as permitted under G.L. c. 218, § 30. Accordingly, we must infer that the judge intended to exercise jurisdiction and that a trial on the charge of possession of heroin was being held in the Municipal Court on January 30, 1974. ² The fact that the prosecutor, Detective Frost, mistakenly thought that a probable cause hearing on the charge of possession with intent to distribute was being conducted is of no consequence, for no complaint had been issued for that offense.

Having concluded that a trial on the merits had begun, we further find that jeopardy had attached, for the judge had begun to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). This court has adhered consistently to the view that acquittal or conviction is not a condition precedent to jeopardy attaching, but rather that jeopardy attaches when the defendant is put on trial. Commonwealth v. Hart, 149 Mass. 7, 9, 20 N.E. 310 (1889). Commonwealth v. McCormick, 130 Mass. 61 (1881). See Stokes v. Commonwealth, --- Mass. ---, 336 N.E.2d 735 (1975), ^a citing Breed v. Jones, 421 U.S. 519, 531, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Once Detective Frost had been sworn and had testified, the defendant was 'put to trial before the trier of facts.' United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 593 (1971). Cf. Commonwealth v. Micheli, 258 Mass. 89, 91, 154 N.E. 586 (1927).

Although we find that the defendant had been placed in jeopardy, this conclusion 'begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.' Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). In light of our determination that jeopardy had attached, we are called on to assess the propriety of the judge's decision to discontinue the proceeding, over the defendant's objection, so as to permit amendment of the complaint. It is our opinion that the termination of the trial in this case for the purpose of trying the defendant for a greater offense was not required by "manifest necessity' or the 'ends of public justice." Id. at 468, 93 S.Ct. at 1072.

It is well settled that a defendant has a 'valued right to have his trial completed by a particular tribunal . . ..' Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). See Commonwealth v. Dascalakis, 246 Mass. 12, 18, 140 N.E. 470 (1923); Commonwealth v. Micheli, supra 258 Mass. at 92, 154 N.E.2d 586. When a judge, acting without the defendant's consent, aborts the proceeding, as was done in the present case, the defendant is deprived of this right to have his case decided on the merits. See United States v. Jorn, supra 400 U.S. at 484, 91 S.Ct. 547. Nonetheless, we recognize that this right must in some instances be subordinated to the ends of public justice. See Thames v. Commonwealth,--- Mass. ---, 312 N.E.2d 569 (1974); ^b Commonwealth v. Juliano, 358 Mass. 465, 467, 265 N.E.2d 500 (1970); Commonwealth v. McCormick, 130 Mass. 61, 62 (1881). As was said in Commonwealth v. Juliano, supra 358 Mass. at 467, 265 N.E.2d at 501, 'The power given to the court (to end a trial) cannot be exercised arbitrarily or without good cause and can only be used for the protection of the public and the security of the defendant and his right to an impartial trial.' A trial may be aborted 'by reason of some physical or moral necessity arising from no fault or neglect of the government. When such is the case, the trial may be stopped, and the defendant will not be protected from being afterwards tried upon the same indictment.' Ibid., quoting from Commonwealth v. McCormick, supra 130 Mass. at 62.

Measured against these standards, we cannot say that there was a 'manifest necessity' for the judge's action. Unlike the situation in Illinois v. Somerville, supra, the defendant in the present case was placed on trial on a valid complaint. The termination of the trial for what amounted to prosecutorial error or oversight in not charging the defendant with the more serious offense of possession of heroin with intent to distribute cannot justify the suspension of a trial on a valid complaint when done over the defendant's objection. If a prosecutor or judge may not subject a defendant to a second prosecution by discontinuing a trial in order to afford the prosecution a more favorable opportunity to convict (Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)), it cannot reasonably be argued that a trial may be terminated in order to provide the State with a more favorable opportunity to convict on a more serious charge, carrying a greater...