Com. v. Juliano

• Decision Date: 30 December 1970
• Citation: 265 N.E.2d 500,358 Mass. 465
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Francis JULIANO.

Page 500

265 N.E.2d 500

358 Mass. 465

COMMONWEALTH v. Francis JULIANO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 2, 1970.

Decided Dec. 30, 1970.

Reuben Goodman, Boston, for defendant.

Robert J. Glass, Sp. Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, KIRK, REARDON and QUIRICO, JJ.

TAURO, Chief Judge.

This is an appeal under G.L. c. 278, §§ 33A--33G, from a conviction on an indictment in three counts charging the defendant with unlawfully and carnally knowing and abusing a female child under sixteen.

The defendant offers two grounds for appeal--first, double jeopardy and, second, that he was prejudiced by the trial judge's ruling which permitted the prosecution to put certain questions to a witness about matters which previously had been construed as inadmissible at the voir dire.

On January 13, 1970, a jury were duly empaneled and sworn. Over the objection and exception of the defendant the court declared a mistrial because of a juror's criminal record. ¹ At the point when this record was called to the court's attention, the clerk had not yet read the indictment. The Commonwealth had no prior knowledge of the juror's criminal record. The empaneling of a new jury and the subsequent trial followed within the hour. The defendant objected to a second trial on the ground of double jeopardy in violation of the United States Constitution.

That a person cannot be twice put in jeopardy for the same offence is a fundamental principle of the common law. A defendant is similarly protected by the Fifth Amendment to the United States Constitution which is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. There is meager authority in Massachusetts as to the exact time when a defendant is place in jeopardy. In Commonwealth v. McCormick, 130 Mass. 61, the court said, 'When a jury has been sworn to try the issue and the trial has been commenced, the jeopardy to which the defendant is exposed is held to have begun * * *.' We assume, without deciding, that the defendant Juliano was in jeopardy when the mistrial was declared.

In Commonwealth v. McCormick, supra, at 62, the court said 'From the necessity of the case, however, there must be many exceptions to the rule. Thus, it is held not to apply when the trial comes to an end by the sickness or death of a juryman; * * * or the illness of the judge; * * * or the expiration of the term of the court; * * * or the impossibility of obtaining an agreement of the jury within a reasonable time, or without physical coercion; * * * or, in short, whenever the case cannot be proceeded with 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. * * *'

The power given to the court 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.

It is our view that the trial judge properly exercised his power of discretion in declaring a mistrial for the reason that he set forth in the record (see fn. 1). Moreover, some of the juror's crime involved intrafamilial problems (assault and battery and nonsupport of wife). The charge against the defendant in the instant case was carnal abuse of his thirteen year old daughter. We believe that there was no abuse of discretion on the part of the trial judge and that he acted properly to 'protect the administration of justice by investigating at any state of the trial an objection to the impartiability of any juror, and by withdrawing the case from the jury * * * (when) such juror * * * (was) found unfit to sit therein.' Commonwealth v. McCormick, 130 Mass. 61, 62, referring with approval to the holding in United States v. Morris, C.C., Fed.Cas. No. 15,815, 1 Curt. 23. See Commonwealth v. Monahan, 349 Mass. 139, 156, 207 N.E.2d 29.

At the second trial, thirteen year old Theresa Juliano testified that the defendant, her father, had intercourse with her on three occasions during a period of a few months, from October, 1968, to February, 1969. While cross-examining Theresa, defence counsel brought out that one Sister Suzanne Murphy had taken her to Theresa's home one evening and that there had been a conversation between Sister Murphy and Theresa's parents; and that thereafter Theresa said to her mother and father that she was sorry, that she had lied about her father. On redirect examination the prosecutor asked Theresa why she had said that she had lied, to which Theresa answered that she was 'afraid' of her father. There was...