Com. v. Love

• Decision Date: 04 November 2008
• Docket Number: SJC-09952
• Citation: 895 N.E.2d 744,452 Mass. 498
• Parties: COMMONWEALTH v. Julius LOVE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

895 N.E.2d 744

452 Mass. 498

COMMONWEALTH v. Julius LOVE.

SJC-09952

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 4, 2008.

Decided November 4, 2008.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Joseph D. Bernard, Springfield, for the defendant.

Present: Marshall, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

Over the objection of the Commonwealth and notwithstanding the provisions of Mass. R.Crim. P. 15(c), as appearing in 422 Mass. 1501 (1996), a District Court judge heard evidence simultaneously for purposes of a motion to suppress hearing and a trial.¹ The judge commented that this type of combined hearing is a frequent occurrence in the District Court. Before the District Court proceedings were completed, the defendant was indicted. Concluding that jeopardy had attached in the District Court proceeding, a Superior Court judge dismissed the indictments on double jeopardy grounds. The Commonwealth applied for interlocutory review pursuant to G.L. c. 211, § 3. A single justice of this court stayed the proceedings and reserved and reported two questions to the full court.² We determine that it was error for the District Court judge to attempt to hear the motion and conduct the trial simultaneously, and that once trial testimony was introduced in the proceeding, jeopardy attached. Accordingly, the Superior Court judge correctly dismissed the indictments. Nothing appears, however, that precludes a continuation of the District Court case, and we order a remand for that purpose.

Facts and proceedings. In January of 2006, a complaint issued against the defendant for possession of a class B substance with intent to distribute, subsequent offense, in violation of G.L. c. 94C, § 32A (b), and for possession of drugs with intent to distribute in a school or park zone, in violation of G.L. c. 94C, § 32J. The defendant filed a motion to suppress physical evidence and statements that he made.

The District Court docket reflects that the motion to suppress and a bench trial were conducted simultaneously on May 5, 2006: "Motion to [s]uppress and [b]ench [t]rial combined. Some trial evidence to be introduced during [m]otion to [s]uppress hearing." At the beginning of that proceeding, the defendant's counsel requested that the judge conduct a jury-waiver colloquy. The Commonwealth protested that "Its [sic] on for a[m]otion to [s]uppress, Your Honor." Defense counsel requested that the proceedings be combined. The prosecutor again objected that the matter was scheduled only for a motion to suppress, and defense counsel stated that he believed the case was marked for motion and trial.

In response to the judge's questions, the prosecutor stated that she was not prepared for trial; she needed witnesses who were not present, one to prove the distance from the park, and an expert witness to establish intent. She said she would also need the drugs.³ The judge explained that when the defendant waives a jury, the court "often" "handle[s] the [m]otion to [s]uppress and trial in one hearing." At the judge's suggestion, the defendant agreed that the presence of the drugs was not necessary. He also stipulated that the area where he was arrested was sixteen feet from a park.⁴

Despite the prosecutor's objections, the judge stated that he would proceed with the motion to suppress and would also consider any evidence he heard for purposes of trial. Both parties eventually agreed to this procedure and the judge conducted a jury-waiver colloquy with the defendant. He next directed the clerk to "[s]wear in the witnesses for the trial," and the witnesses were sworn as a group.

The prosecutor then asked, "just for my clarification, are we proceeding on the [m]otion to [s]uppress at this point?" The judge explained, "[W]e're going to proceed on both, [m]otion to [s]uppress and the trial and we'll suspend the rest of the trial for some other time. Right now, we'll address the motion today, but anything I hear in this proceeding will be part of the trial."⁵

The prosecutor pressed her point, requesting that the judge clarify the nature of the proceedings, and the judge stated, "We're going to do the [m]otion to [s]uppress today.... We'll do the trial another day. But any evidence I hear in this case will be considered for the trial as well."

The evidentiary proceeding commenced, and the prosecutor called two officers of the Springfield police department, David Askins and Francisco Otero, to testify to the events surrounding the stop and arrest of the defendant.⁶ Both parties argued as to the admissibility of certain evidence. On several occasions, the defendant objected on grounds of hearsay, "for the purposes of trial," while agreeing that the testimony was relevant and admissible for purposes of the motion to suppress.⁷ Some of the defendant's objections were sustained. Other aspects of the proceedings involved evidence concerning possession, intent, and the weight of the drugs, which would be relevant only at trial. For example, both officers,⁸ based on their years of experience in narcotics investigations, testified regarding typical amounts of drugs ingested by users with a heavy drug habit.

Following the testimony of the two police witnesses on May 5, 2006, the matter was continued several times; at least twice the docket marking indicated a "continuation" or "continuance of trial." On June 22, 2006, the defendant was indicted by a grand jury on charges of possession of cocaine with intent to distribute, subsequent offense, in violation of G.L. c. 94C, § 32A (d), and of doing so within 1,000 feet of a school or park, in violation of G.L. c. 94C, § 32J, based on the same acts underlying the District Court complaint.

After the defendant was arraigned in the Superior Court, he moved to stay the Superior Court proceedings or to continue the case until a determination was made by the District Court judge whether jeopardy had attached in the District Court. The defendant then filed a motion in the District Court for findings of fact and rulings of law on whether a trial had begun on May 5, 2006. The District Court judge found that a trial had started on May 5, 2006; that he had taken evidence for trial; and that he had retained personal jurisdiction of the case.⁹ Based on the District Court judge's findings, a Superior Court judge allowed the defendant's motion to dismiss on grounds of double jeopardy. Noting that the status of the case in the District Court was "uncertain," the Superior Court judge reserved for later determination, dependent on future proceedings in the District Court, whether the dismissal was with or without prejudice.

After various proceedings which we need not detail, the District Court judge set a trial date of February 5, 2007, and denied the Commonwealth's motions for a stay and to continue the proceedings. As stated, the Commonwealth sought relief from a single justice of this court pursuant to G.L. c. 211, § 3.

Discussion. 1. Attachment of jeopardy. The double jeopardy clause of the Fifth Amendment to the United States Constitution, and protections recognized in Massachusetts statutory and common law, prevent a criminal defendant from being tried more than once for the same offense. See Commonwealth v. Woods, 414 Mass. 343, 346, 607 N.E.2d 1024, cert. denied, 510 U.S. 815, 114 S.Ct. 65, 126 L.Ed.2d 35 (1993). The double jeopardy clause protects against "a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." Commonwealth v. Constantino, 443 Mass. 521, 523, 822 N.E.2d 1185 (2005), quoting Mahoney v. Commonwealth, 415 Mass. 278, 283, 612 N.E.2d 1175 (1993). See Commonwealth v. Woods, supra at 346 n. 4, 607 N.E.2d 1024. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), quoting Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). See Commonwealth v. Gonzalez, 437 Mass. 276, 281, 771 N.E.2d 134 (2002), cert. denied, 538 U.S. 962, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003).

The policy considerations underlying the prohibition against double jeopardy balance these rights of the defendant with the public's interest in ensuring that criminal laws are enforced and prosecuting those accused of crimes in one "full and fair" trial. See Arizona v. Washington, 434 U.S. 497, 503-505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Commonwealth v. King, 400 Mass. 283, 290, 508 N.E.2d 1382 (1987). While the prosecutor "has a right to try his or her case without interference, subject to well known limits," Commonwealth v. Lowder, 432 Mass. 92, 102, 731 N.E.2d 510 (2000), the Commonwealth must not use its power and resources in repeated trials, while it benefits from the knowledge gained in the initial proceeding about any potential weaknesses in its case. See United States v. DiFrancesco, 449 U.S. 117, 128-129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Glawson v. Commonwealth, 445 Mass. 1019, 1020-1021, 839 N.E.2d 822 (2005), and cases cited.

The "`constitutional policies underpinning the Fifth Amendment's guarantee' [against double jeopardy] are not implicated before that point in the proceedings at which `jeopardy attaches.'" Serfass v. United States, supra at 390-391, 95 S.Ct. 1055, quoting United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The United States Supreme Court has consistently...