Com. v. Lovett

Citation374 Mass. 394,372 N.E.2d 782
PartiesCOMMONWEALTH v. Walter J. LOVETT, Jr. Supreme Judicial Court of Massachusetts, Worcester
Decision Date16 February 1978
CourtUnited States State Supreme Judicial Court of Massachusetts

John C. McBride, Everett, for defendant.

Daniel F. Toomey, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

On June 17, 1975, a criminal complaint was lodged against the defendant in the Second District Court of Eastern Worcester charging the offense of breaking and entering a dwelling house of one Dr. Joseph Humphries in the nighttime with intent to commit the felony of larceny of goods valued at more than $100. 1 The complaint erroneously noted that this conduct constituted a violation of G.L. c. 266, § 16. 2

On July 9, 1975, the defendant was convicted on the complaint and sentenced to a term of two and one-half years in a house of correction. Pursuant to G.L. c. 278, § 18, as amended through St.1974, c. 167, he appealed for a trial de novo and was released on personal recognizance.

On September 30, a grand jury indicted the defendant for the same offense as that charged in the complaint, the nighttime breaking and entering of the dwelling house of Dr. Humphries with intent to commit the larceny of goods worth more than $100. After a four-day trial in the Superior Court in Worcester County, a jury found the defendant guilty. The judge sentenced the defendant to serve a term of from ten to twenty years in the Massachusetts Correctional Institution at Walpole. On motion by the Commonwealth, the judge then dismissed the complaint on which the defendant had been convicted in the District Court.

The defendant appealed his conviction pursuant to G.L. c. 278, §§ 33A-33G. Execution of his sentence was stayed by the Appeals Court pending this appeal. On April 4, 1977, we ordered that the matter be transferred to this court. We affirm the conviction.

The defendant raises three issues on appeal: (1) Whether the defendant was placed twice in jeopardy when he was tried on an indictment alleging the offense of which he had been earlier convicted in a District Court. (2) Whether the trial judge erred in refusing to remove a juror for bias. (3) Whether the Commonwealth presented sufficient evidence to warrant submission of the issue of a nighttime breaking and entry to a jury.

We find no error. The evidence presented at trial will be discussed as relevant to our consideration of the issues.

1. Double jeopardy. The defendant argues that the judge erred in denying the defendant's motion to dismiss. He contends that his indictment and trial in the Superior Court on the same factual circumstances as those which formed the basis of a previous complaint in the District Court subjected him to double jeopardy. The Commonwealth concedes that the defendant was twice tried and convicted for the same offense, but denies that this procedure constituted double jeopardy.

Double jeopardy limitations on reprosecution for the same offense reflect the "deeply ingrained" principle of our jurisprudence that repeated attempts by the State to convict an individual for an alleged offense improperly subject him to "embarrassment, expense and ordeal and compel 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." Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). The double jeopardy prohibition clearly applies to retrial after conviction as well as after acquittal. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, rehearing denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970); Commonwealth v. McCan, 277 Mass. 199, 201, 178 N.E. 633 (1931). Otherwise, a defendant would be helpless against a prosecutor who repeatedly prosecutes a defendant until a judge finally imposes a sentence satisfactory to the prosecutor. It is equally clear, however, that double jeopardy principles do not always prohibit second trials. Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974).

It is fundamental that a defendant who claims to have been twice put in jeopardy by a trial must show that he or she had been placed in jeopardy at an earlier trial for the same offense. See Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Sanabria, 548 F.2d 1, 6 (1st Cir. 1976), cert. granted, 433 U.S. 907, 97 S.Ct. 2970, 53 L.Ed.2d 1090 (1977). This rationale underlies the rule that jeopardy does not attach if the earlier proceedings were conducted by a court without jurisdiction over the offense. As Chief Justice Shaw explained in Commonwealth v. Roby, 12 Pick. 496, 502 (1832): "(W)here the court before which the former trial took place had no jurisdiction of the offence, the party cannot be deemed in law to have been put in jeopardy, because no valid and binding judgment could have been rendered by such court." See also Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 56 L.Ed. 500 (1912); United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Lemieux v. Robbins, 414 F.2d 353, 354 (1st Cir. 1969), cert. denied, 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432 (1970). But see Culberson v. Wainwright, 453 F.2d 1219, 1220 (5th Cir.), cert. denied, 407 U.S. 914, 92 S.Ct. 2449, 32 L.Ed.2d 688 (1972); Robinson v. Neil, 366 F.Supp. 924, 928-929 (E.D.Tenn.1973).

Thus, we have held that a failure of jurisdiction due to a defendant's age nullifies the proceedings so that a subsequent trial is not barred by double jeopardy principles. Commonwealth v. Chase, 348 Mass. 100, 105, 202 N.E.2d 300 (1964). Similarly, where a defendant has been convicted or acquitted of a minor statutory offense in an inferior court, he may be prosecuted for a higher crime of which the inferior court lacks jurisdiction. Commonwealth v. Mahoney, 331 Mass. 510, 514, 120 N.E.2d 645 (1954). Commonwealth v. Jones, 288 Mass. 150, 152, 192 N.E. 522 (1934). Commonwealth v. McCan, supra, 277 Mass. at 204-206, 178 N.E. 633. Cf. Commonwealth v. Clemons, 370 Mass. ---, ---, a 346 N.E.2d 864 (1976).

We conclude that the District Court had no jurisdiction over the instant offense and that, consequently, double jeopardy principles do not bar the Superior Court proceedings on the indictment charging the defendant with the commission of the same offense. 3 The District Court complaint accused the defendant of breaking and entering a dwelling house in the nighttime with the intent to commit larceny. That act is prohibited by G.L. c. 266, § 15, an offense over which the District Court lacks jurisdiction. 4 The judge properly rejected the argument that the District Court had jurisdiction and denied the defendant's motion to dismiss. It is true that a defendant may be convicted of the lesser offense of breaking and entering in the daytime even though the indictment did not allege that the act was done during the day. Commonwealth v. Sitko, --- Mass. ---, --- - --- b, 361 N.E.2d 1258 (1977). Commonwealth v. Reynolds, 122 Mass. 454, 457 (1877). Nonetheless, in those cases the court had jurisdiction over the offense whether committed during the day or night. 5 There is no evidence here that the District Court judge was acting under G.L. c. 266, § 18. We note that § 18 provides a maximum sentence of imprisonment that may be imposed in the District Court of "not more than two years," whereas the District Court judge imposed a sentence of two and one-half years in the house of correction. Cf. G.L. c. 266, § 16. The fact that the District Court judge imposed the punishment provided in § 16 rather than § 18 indicates that he was not acting in accordance with the defendant's theory.

Another ground on which a double jeopardy claim might rest is that, arguably, the District Court possessed jurisdiction because the complaint referred to the defendant as having violated G.L. c. 266, § 16. Chapter 266, § 16, proscribes, inter alia, the nighttime breaking and entering of a building, ship or vessel with intent to commit a felony. It is an offense specifically included within the jurisdiction of the District Court. See G.L. c. 218, § 26. The fact that the complaint contained the phrase "in vio(lation) of G.L. c. 266, § 16" is not determinative, however, as to the offense alleged thereby. The text of the allegation determines the nature of the complaint. Commonwealth v. McClaine, 367 Mass. 559, 326 N.E.2d 894 (1975). Here the language in the body of the complaint alleges that the defendant committed unarmed burglary of a dwelling house in the nighttime with intent to commit a felony therein, an offense not within the scope of the District Court's powers. G.L. c. 266, § 15. Cf. G.L. c. 277, § 79.

Finally, we do not agree with the defendant's contention that his case falls squarely within the prohibition described in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Supreme Court in Blackledge specifically eschewed reliance on the double jeopardy clause. Id. at 31, 94 S.Ct. 2098. In Blackledge, a defendant who had appealed from his misdemeanor conviction in a North Carolina District Court was subsequently indicted for a felony offense involving the same transaction. The Supreme Court held that the potential for the prosecution's vindictiveness in such a situation denied the defendant due process of law. Id. at 27-28, 94 S.Ct. 2098. By contrast, the prosecution here did not increase the severity of the charge in retaliatory response to the defendant's exercise of his right to appeal. Instead, the government obtained an indictment for the same offense as that charged in the complaint which was erroneously brought in the District Court. The mere fact that a greater sentence was imposed in the Superior Court than in the District Court is not sufficient to involve the principle of Blackledge. See Colten v. Kentucky, 407 U.S. 104, 92...

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