Com. v. Murchison
| Decision Date | 21 June 1984 |
| Parties | COMMONWEALTH v. Darrell L. MURCHISON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.
John E. Riley, Nutley, N.J. (Robert L. Sheketoff, Boston, with him), for defendant.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
The Commonwealth's appeal in this case brings before us the issue whether it was error for a judge of the Boston Municipal Court to dismiss a criminal complaint, on the motion of the defendant, after the judge had allowed the defendant's motion for a mistrial because of prosecutorial misconduct during the trial. We remand the case to the trial judge for further findings and rulings, in light of our holdings in Commonwealth v. Lam Hue To, 391 Mass. 301, 461 N.E.2d 776 (1984), which was decided on a date after the judge's rulings in the instant case.
The defendant was tried before a jury of six in the Boston Municipal Court on a complaint for unlawfully carrying a firearm. During the trial, the defendant moved for a mistrial based on the prosecutor's conduct. The trial judge allowed the case to proceed, stating that he would act on the motion after the case went to the jury. The jury returned a guilty verdict, and the defendant renewed his motion for mistrial. The motion was allowed. Subsequently, the defendant filed a motion to dismiss the complaint, which the judge allowed after hearings. The Commonwealth appealed to the Appeals Court, and we transferred the case to this court on our own motion.
We summarize the findings of the judge relative to the mistrial and the dismissal of the complaint. The defendant Murchison had been arrested with another defendant, one McElroy, and charged with violations of G.L. c. 269, § 10(a ), for carrying a firearm without a license to do so. Both defendants waived their right to an initial jury trial. McElroy was found not guilty, and the defendant Murchison appealed for a trial de novo before a jury of six in the Boston Municipal Court.
At the jury trial evidence was presented that the two men were seen on the night of July 30, 1982, walking on Back Street, Boston, which parallels Storrow Drive. A chain link fence separates a grassy area between Back Street and Storrow Drive. There was testimony that the two men jumped the fence and while approaching the area where the police were, the defendant Murchison was observed making a throwing gesture. The two police officers stopped the two men and one of the officers went to the area where the throwing gesture was made and found a firearm. Both defendants were arrested. During the jury trial there was reference to the other defendant, McElroy, and his conduct, both in direct and cross-examination. Inasmuch as there had been reference to McElroy, the judge allowed inquiry about McElroy but, at lengthy side bar conferences, instructed the prosecutor not to reveal the outcome of the bench trial of the defendant Murchison.
After inquiring of the witness (a police officer) as to the outcome of the McElroy case, the prosecutor asked the question, "[W]as McElroy tried with someone else?" The judge excluded the question and instructed the jury to disregard the question. The jury were excused and the counsel for the defendant filed a motion for mistrial. The following day, after conference with the district attorney and defense counsel, the judge took the motion for mistrial under advisement and allowed the case to proceed, preserving the right of defense counsel to renew his motion for mistrial after the jury verdict. The jury returned a verdict of guilty and the judge set aside the verdict on his own motion and allowed the defendant's renewed motion for a mistrial. The defendant, through his counsel, filed a motion to dismiss the complaint.
After hearings on the motion to dismiss, the judge found that both defense counsel and the district attorney had copies of the bench trial...
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