Costarelli v. Com.

• Decision Date: 21 March 1978
• Citation: 374 Mass. 677,373 N.E.2d 1183
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1183

373 N.E.2d 1183

374 Mass. 677

Steven COSTARELLI v. COMMONWEALTH Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1977.

Decided March 21, 1978.

Robert W. Hagopian, Cambridge, for Steven Costarelli.

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

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

QUIRICO, Justice.

This case is before us on a reservation and report by a single justice of this court. The question presented is whether the double jeopardy clause of the Fifth Amendment to the United States Constitution bars prosecution for the crime of using a motor vehicle without authority after the trial and dismissal of an earlier complaint charging the crime of larceny of the same vehicle. We hold that it does in the circumstances of this case.

We summarize the facts as they appear in a statement of agreed facts filed with the single justice. On January 23, 1974, Costarelli (the defendant) was tried in the Municipal Court of the City of Boston on a complaint charging him with larceny of a motor vehicle. G.L. c. 266, § 28. At the completion of the evidence, which consisted of the testimony of two witnesses for the prosecution and the testimony of the defendant, the defendant moved for a finding of not guilty. The trial judge instead advised the police prosecutor that he had brought the wrong charge and ordered him to obtain a new complaint charging the defendant with the crime of driving the same motor vehicle without authority. G.L. c. 90, § 24(2)(a ). Without asking for or obtaining the defendant's consent therefor, the judge dismissed the larceny complaint while the prosecutor obtained the new complaint. The defendant remained silent thereon.

On February 27, 1974, the defendant was tried on the new complaint, found guilty, and sentenced to one year in a house of correction. The defense of double jeopardy was not raised at that trial. The defendant appealed his conviction and sentence to the Superior Court. On February 2, 1977, when the case was called for trial in that court, the defendant filed a motion to dismiss the complaint on the ground that he had been previously placed in jeopardy for the same crime when he was tried on the complaint charging larceny. The motion was denied. The defendant thereon promptly filed the present petition for relief by a single justice of this court under G.L. c. 211, § 3, the relief sought being a stay of trial on the criminal complaint in the Superior Court and an order for the dismissal of that complaint. The single justice, on the filing of a statement of agreed facts, reserved and reported the case to the full court without decision.

The defendant contends that his trial on the larceny charge, although it ended in a dismissal, placed him in jeopardy as well for the crime of use without authority. He maintains that, after the dismissal of the initial complaint, a subsequent prosecution for either offense was barred. The Commonwealth argues that this case is not properly before this court; that the defendant waived his right to raise a double jeopardy defense by failing to assert it at the second Municipal Court trial; and that, notwithstanding our decision on the first two issues, the double jeopardy clause does not bar the second prosecution. We disagree, and hold that the issue is properly raised in this proceeding, and that the second prosecution was barred.

1. The defendant contends that the case is properly before us pursuant to G.L. c. 211, § 3, which grants to this court general superintendence power over all inferior courts. ¹ This extraordinary power will not ordinarily be exercised to review interlocutory rulings in criminal cases, since the rights of criminal defendants are generally fully protected through the regular appellate process. See Rosenberg v. Commonwealth,--- Mass. ---, --- ^a, 360 N.E.2d 333 (1977). ² However, in the most exceptional circumstances, our power under this statute will be exercised to review an interlocutory ruling. Corey v. Commonwealth, 364 Mass. 137, 138, 301 N.E.2d 450 (1973). Specifically, the defendant must show (1) that he has a substantial claim that an important substantive right, belonging to him, is being violated, Lataille v. District Court of E. Hampden, 366 Mass. 525, 526, 320 N.E.2d 877 (1974), and (2) that the error is irreversible, such that an order for a new trial in the normal process of appeal would not place him in status quo. Whitmarsh v. Commonwealth, 366 Mass. 212, 215, 316 N.E.2d 610 (1974), appeal dismissed, 421 U.S. 957, 95 S.Ct. 1945, 44 L.Ed.2d 446 (1975).

We believe that such a showing has been made here. The right to be free from being placed twice in jeopardy is significant, and the defendant's petition presents a claim that has substantial merit. More important is the fact that a refusal by us to review before trial the claim of rights under the double jeopardy clause would, because of the nature of the guaranty, result in the irremediable denial of such rights. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court, in holding that a pre-trial order denying a claim of former jeopardy was reviewable under the Federal appeals statute, 28 U.S.C. § 1291 (1970), stated: "(T)his Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Abney, supra at 660-661, 97 S.Ct. at 2041 (emphasis in original). Compare United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), with United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). This guaranty against being twice exposed to the risk of conviction, regardless of whether conviction actually results, would be seriously weakened if appellate review of a claim of double jeopardy were delayed until after a second trial. We therefore hold that the defendant is entitled to review under our general superintendence power. ³

2. The Commonwealth also contends that the defendant waived the double jeopardy defense by failing to raise it at his second Municipal Court trial, and could not, therefore, assert it on the de novo appeal to the Superior Court. However in our view of the de novo appeal procedure a failure to assert such defense in the District Court does not result in its waiver. This has long been the rule in civil cases. See Ferguson v. Jackson, 180 Mass. 557, 558, 62 N.E. 965 (1902); Fels v. Raymond, 134 Mass. 376, 377 (1883); G.L. c. 231, § 97, as appearing in St.1973, c. 1114, § 193 ("The case shall be entered in the superior court . . . and shall there be tried and determined as if originally entered therein.") We think it is equally applicable to criminal matters. See Mann v. Commonwealth, 359 Mass. 661, 663, 271 N.E.2d 331 (1971); G.L. c. 277, § 47A. A defendant in a criminal case has "an unqualified and unfettered right of appeal" from a District Court conviction, Whitmarsh v. Commonwealth, supra, 366 Mass. at 220, 316 N.E.2d at 615, quoting from Jones v. Robbins, 8 Gray 329, 341-342 (1857), and, on the exercise of that right, the District Court judgment is vacated. Enbinder v. Commonwealth, 368 Mass. 214, 217-218, 330 N.E.2d 846, cert. denied, 423 U.S. 1024, 96 S.Ct. 467, 46 L.Ed.2d 398 (1975). The value of the de novo appeal process would be significantly reduced if we limited the defenses that a defendant could assert at the de novo trial to those that he raised in the original trial. This limitation would also cast a serious constitutional cloud over the entire procedure. See Ludwig v. Massachusetts, 427 U.S. 618, 625-627, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976); Whitmarsh, supra. For these reasons we hold that the defense of prior jeopardy was not waived by the defendant.

3. The proscription of placing a defendant twice in jeopardy for the same offense has long been recognized as part of the common law of the Commonwealth, Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974), and has more recently become a matter of constitutional right by the application to the States of the double jeopardy clause of the Fifth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The constitutional prohibition against double jeopardy rests on the belief 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." Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Commonwealth v. Lovett, --- Mass. ---, --- ^b,372 N.E.2d 782 (1978). The defendant contends that the Municipal Court trial on the use without authority charge was a second attempt to convict him of the same offense, and was therefore prohibited. The Commonwealth asserts that the dismissal of the first complaint was not such a disposition as precludes another prosecution for the same crime, and, alternatively, that larceny of a motor vehicle and use without authority are not the "same offense" within the meaning of the double jeopardy clause. We first address the question of the effect of the dismissal order on the defendant's rights.

Because evidence had been heard at the first trial, the defendant was placed in jeopardy. Commonwealth v. Ludwig, --- Mass. ---, --- ^c, 345 N.E.2d 386 (1976). Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). This conclusion is merely a starting point, however, since it is unquestioned that in some circumstances a second prosecution may be maintained, even though a defendant has had an earlier trial for the same offense terminated without his consent....