Com. v. Steward

• Decision Date: 10 October 1985
• Parties: COMMONWEALTH v. Darryl STEWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1091

483 N.E.2d 1091

396 Mass. 76

COMMONWEALTH v. Darryl STEWARD.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 10, 1985.

Decided Oct. 10, 1985.

Cynthia J. Dodge, Marblehead, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The defendant asks us to hold that he was twice placed in jeopardy by being tried and found guilty after the judge had declared a mistrial because, on the second day of the first trial, only eleven jurors had appeared. We so hold, and we reverse the judgment of conviction.

The relevant events of the first trial are these. A jury of fourteen persons were empanelled on Friday, February 10, 1984, for the defendant's trial on an indictment for robbery. The assistant district attorney made his opening and the first witness was called to testify. He was examined by the prosecutor, cross-examined by counsel for the codefendant, ¹ and counsel for the defendant started but had not completed cross-examination of the witness when court was recessed until Monday. When the trial resumed on Monday, February 13, 1984, only eleven jurors appeared, and the trial judge announced his intention to declare a mistrial because of a "manifest necessity." Counsel for the codefendant objected and suggested that the case be continued for a day. Counsel for the defendant joined in the objection. The assistant district attorney noted the possibility of continuing with eleven jurors if the defendants assented. The judge rejected all suggestions out of hand. There is an indication in the record that two of the jurors were afflicted with the "flu" and that the third juror had told somebody on Friday that he would not be present on Monday because of a death in the family. Counsel for the codefendant pressed the judge for consideration of "other less drastic solutions," repeating his suggestion that the trial be continued until the next day. Nevertheless, the judge declared a mistrial because he thought that he was compelled to do so. In advising the eleven jurors that they were excused, he said: "When you drop below 12, you have to declare a mistrial, which means that you have to start all over again."

Before a panel of new jurors was called to the courtroom, counsel for the codefendant made a motion to dismiss on the ground of double jeopardy and it was denied. Though the record does not indicate whether the defendant joined in this motion, it may fairly be inferred that he did so because the presentation of the motion followed immediately on the heels of the codefendant's objection to the declaration of the mistrial, in which the defendant's attorney expressly had joined. The Commonwealth makes no contention that the defendant waived his objection or did not adequately preserve his right to rely on the bar of double jeopardy on appeal. On retrial the defendant was convicted of robbery. He appealed the conviction and we granted his application for direct appellate review. ²

The protection against double jeopardy has a long history. The defendant relies entirely on his claim under the United States Constitution, but double jeopardy principles have long been a part of the common law of Massachusetts. Lydon v. Commonwealth, 381 Mass. 356, 366, 409 N.E.2d 745, cert. denied, 449 U.S. 1065, 101 S.Ct. 792, 66 L.Ed.2d 609 (1980). A statute protects one who has been acquitted from being tried for the same crime. G.L. c. 263, § 7 (1984 ed.). The Fifth Amendment to the United States Constitution expressly guarantees the protection against double jeopardy and this guarantee has been declared binding on the States through the Fourteenth Amendment. Benton v. Maryland 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707 (1969). As early as 1824, the United States Supreme Court declared that a trial judge's action in discharging a jury which was unable to agree on a verdict in a capital case did not constitute former jeopardy so as to bar the retrial of the defendant. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The Court used the term "manifest necessity" in Perez for the first time in the context of double jeopardy when it held that "the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act." Id. at 580. Though there must be a high degree of necessity, it need not be absolute. See Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978).

The double jeopardy provision protects one not merely from double punishment but from double trials. See Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975). This is not to say that a defendant may always successfully plead the bar of double jeopardy if he is brought to trial a second time after an aborted first trial. However, if the first trial is terminated over the objection of the defendant, there must be a showing of "manifest necessity" for the termination. The defendant's right to have his trial concluded on his first encounter is "sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one." Arizona v. Washington, supra 434 U.S. at 505, 98 S.Ct. at 830. See Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). This burden consists of demonstrating "manifest necessity." The burden has not been met here.

We shall be deferential to the trial judge's exercise of discretion in ruling that a "manifest necessity"...