Com. v. Spear

• Citation: 43 Mass.App.Ct. 583,686 N.E.2d 1037
• Decision Date: 06 October 1997
• Docket Number: No. 95-P-932,95-P-932
• Parties: COMMONWEALTH v. Martin J. SPEAR.
• Court: Appeals Court of Massachusetts

Page 1037

686 N.E.2d 1037

43 Mass.App.Ct. 583

COMMONWEALTH v. Martin J. SPEAR.

No. 95-P-932.

Appeals Court of Massachusetts,

Hampden.

Argued Sept. 13, 1996.

Decided Oct. 6, 1997.

Benjamin H. Keehn, Committee for Public Counsel Services, Boston, for defendant.

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

Before WARNER, C.J., and ARMSTRONG and PERRETTA, JJ.

WARNER, Chief Justice.

On February 19, 1992, a grand jury returned fifteen separate indictments charging the defendant with rape of a child with force in violation of G.L. c. 265, § 22A (seven indictments), and indecent assault and battery of a child under fourteen in violation of G.L. c. 265, § 13B (eight indictments). Each of the rape indictments was identically worded, as were those charging the defendant with indecent assault and battery. ¹ The conduct that gave rise to the charges allegedly occurred while the defendant was living with the seven year old victim, her mother and her two brothers, in an apartment in Springfield. ²

After a jury trial, at which the defendant was represented by counsel, the judge dismissed all but five of the indictments, (two alleging rape and three alleging indecent assault and battery). The jury subsequently acquitted the defendant on two counts of indecent assault and battery, but were unable to reach unanimous verdicts on the remaining charges. Accordingly, the judge declared a mistrial with respect to those charges.

The defendant was retried on two indictments alleging rape of a child and one alleging indecent assault and battery. At the second trial, the Commonwealth presented several witnesses in addition to the child complainant, including her mother, her aunt, and her treating therapist. The defendant, who appeared pro se, did not testify or present any evidence in his own behalf. He was convicted on all charges.

On appeal, the defendant contends that the second trial violated his constitutional right to be free from double jeopardy. He further claims that the special seating arrangements in effect at that trial, during the child's testimony, violated his confrontation rights pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to the United States Constitution, and that the judge committed reversible error by admitting improper opinion testimony from the child's therapist. We reverse.

Double Jeopardy

The defendant claims that his second trial, on indictments that were worded identically to those which formed the basis of acquittals in his first trial, violated his right to be free from double jeopardy as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, art. 12 of the Massachusetts Declaration of Rights, and Massachusetts common law. ³ This issue is of particular importance because a decision in the defendant's favor would not only require reversal of his convictions but would also preclude any retrial. The defendant, however, did not assert the defense of double jeopardy by pretrial motion or otherwise at his second trial, and the Commonwealth argues that this failure amounts to a waiver of his right to do so here. The defendant maintains that in the absence of a knowing and intelligent waiver, he cannot be deemed to have waived his double jeopardy claim. See Johnson v Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). ⁴

The precise issue presented: whether, in the absence of a knowing and intelligent waiver, a defendant may raise the defense of double jeopardy for the first time on direct appeal from the proceeding that allegedly violated his protected rights, is a matter of first impression in this Commonwealth. See Commonwealth v. Sanchez, 405 Mass. 369, 373 n. 2, 540 N.E.2d 1316 (1989). It is, however, well established that "[a] person may waive his statutory and even his constitutional rights" in certain circumstances. Spence v. Reeder, 382 Mass. 398, 411, 416 N.E.2d 914 (1981), citing Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. Moreover, "[n]ot every asserted waiver of a constitutional right by a criminal defendant [must be] tested by the knowing and intelligent waiver standard." Spence v. Reeder, supra, citing Schneckloth v. Bustamonte, 412 U.S. 218, 235, 237, 93 S.Ct. 2041, 2051-2052, 2052-2053, 36 L.Ed.2d 854 (1973) ("Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection").

With respect to a defendant's constitutional immunity from double jeopardy, although the "[p]rotection ... is a fundamental constitutional right, ... that status alone has not put beyond the pale the idea that it may be waived by failure to raise it at a lower level." Commonwealth v. Norman, 27 Mass.App.Ct. 82, 87, 534 N.E.2d 816, S.C., 406 Mass. 1001, 545 N.E.2d 1155 (1989). Commonwealth v. Hrycenko, 417 Mass. 309, 313-314, 630 N.E.2d 258 (1994). Indeed, the Supreme Judicial Court has stated that the proper time for determining the validity of a defense of double jeopardy is prior to the proceeding that would offend the protected rights. Lydon v. Commonwealth, 381 Mass. 356, 360 n. 7, 367, 409 N.E.2d 745, cert. denied, 449 U.S. 1065, 101 S.Ct. 792, 66 L.Ed.2d 609 (1980) ("If there is a valid double jeopardy claim, it should be dealt with before, rather than after, the second trial"). That court has also suggested, however, that there may be situations in which the waiver of a defendant's double jeopardy rights would be tested by the "knowing" and "intelligent" standard of Johnson v. Zerbst. Commonwealth v. Deeran, 397 Mass. 136, 141, 490 N.E.2d 412 (1986) ("Zerbst [standard] applies only to a defendant's 'consent' to the actual relinquishment of [a] constitutional right ... [which] occurred, if at all, when [the defendant] stood silent at the time of his retrial"). Nevertheless, our appellate courts have not applied the Zerbst standard to the waiver of a defendant's right to raise a double jeopardy defense. Defendants have, therefore, been deemed to have waived the right to assert the defense simply by failing to do so at various stages in the trial and appellate process. See, e.g., Commonwealth v. Dunnington, 390 Mass. 472, 479, 457 N.E.2d 1109 (1983) (waiver for failing to assert defense at de novo jury trial following bench trial); Commonwealth v. Deeran, 397 Mass. at 142, 490 N.E.2d 412 (waiver for failing to assert defense in first motion for a new trial). See also Poretta v. Commonwealth, 409 Mass. 763, 769, 569 N.E.2d 794 (1991) (permissibility of reprosecution following the defendant's "successful motion for mistrial does not depend on whether the motion satisfied the 'knowing, intelligent, and voluntary' standard of Johnson v. Zerbst "). Cf. Commonwealth v. Norman, 27 Mass.App.Ct. at 87-88, 534 N.E.2d 816 (finding no waiver, but distinguishing the case on the ground that it involved successive prosecutions in different courts, thereby implicating issues similar to jurisdiction, which may be challenged at any time).

General Laws c. 277, § 47A, and Mass.R.Crim.P. 13, 378 Mass. 871 (1979), govern pretrial motions in criminal cases, and support the principle that the constitutional immunity from double jeopardy is waived if not affirmatively pleaded by a defendant prior to a second trial. The statute and the rule contemplate the raising of affirmative defenses and objections by pretrial motion, and the language of both is clear enough: "All defenses available to a defendant by plea, other than not guilty, shall only be raised by a motion to dismiss or by a motion to grant appropriate relief." Mass.R.Crim.P. 13(c)(1). Moreover, "[a] defense or objection which is capable of determination without trial of the general issue shall be raised before trial by motion" (emphasis added). Mass.R.Crim.P. 13(c)(2). In addition, "any defense or objection based upon defects in the institution of the prosecution or in the complaint or indictment, other than a failure to show jurisdiction ... or to charge an offense, shall only be raised prior to trial and only by a motion in conformity with the requirements of the Massachusetts Rules of Criminal Procedure. The failure to raise any such defense or objection by motion prior to trial shall constitute a waiver thereof...." G.L. c. 277, § 47A. See Smith, Criminal Practice & Procedure §§ 1300-1302 (2d ed.1983) (restating the rule and the statute and indicating that the defense of double jeopardy is properly raised by pretrial motion to dismiss).

Pursuant to the rule and the statute, we conclude that the defense of double jeopardy is indeed waived if not raised by a defendant prior to a second trial. Absent any clear, statutory or constitutional mandate to the contrary, we decline to impose a requirement that in order to be effective, such waiver must be made knowingly and intelligently. See Commonwealth v. Amirault, 424 Mass. 618, 651 n. 23, 677 N.E.2d 652 (1997) (declining to "add [the right of face-to-face confrontation] to the very short list of rights" that must be relinquished personally by a defendant). We hold, therefore, that by failing to assert the defense of double jeopardy prior to his second trial, the defendant waived the right to do so here. ⁵ , ⁶

Our resolution of the waiver issue is in accord with the treatment of the issue in other jurisdictions. Numerous Federal appellate decisions have relied on Fed.R.Crim.P. 12(b), which is similar to Mass.R.Crim.P. 13 and G.L. c. 277, § 47A, in holding that a defendant's failure to assert the defense of double jeopardy prior to or at the trial that allegedly offended the protected rights, constituted a waiver of the right to do so on appeal. ⁷ See, e.g., Barker v. Ohio, 328 F.2d 582, 584-585 (6th Cir.1964); Haddad v. United States, 349 F.2d 511, 514 (9th Cir.), cert. denied, 382 U.S. 896, 86 S.Ct. 193, 15 L.Ed.2d 153 (1965); United States v. Scott, 464 F.2d 832, 833 (D...