Fuentes v. Com.
| Decision Date | 23 March 2007 |
| Parties | Jose FUENTES v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
RESCRIPT.
Jose Fuentes appeals from a judgment of a single justice of this court denying his petition for relief under G.L. c. 211, § 3. We affirm the judgment.
Fuentes was indicted on charges of unlawful distribution of heroin, second or subsequent offense, and of unlawful distribution of heroin in a school zone. A jury trial commenced in the Superior Court. On the second day of deliberations, the jury requested and received reinstruction on reasonable doubt and direct and circumstantial evidence. After deliberations resumed, the foreperson of the jury sent a note to the trial judge, asking, "At what point is a jury hung?" At the request of the Commonwealth and with Fuentes's assent, the judge charged the jury in accordance with Commonwealth v. Tuey, 62 Mass. 1, 8 Cush. 1 2-3 (1851), and Commonwealth v. Rodriquez, 364 Mass. 87, 300 N.E.2d 192 (1973) (Tuey-Rodriquez charge). The jury resumed deliberating, and shortly thereafter, the foreperson returned another note. The jury were returned to the court room, along with the prosecutor and defense counsel. Defense counsel, at this point, had not been informed of the contents of the note. Addressing the jury, the judge stated that she had received the note, which stated that the jury could not reach a unanimous verdict as to either indictment. The judge thereupon stated that she declared a hung jury and a mistrial. She did not consider any alternatives to declaring a mistrial (other than to say that she had no other choice), and she did not give defense counsel an opportunity to be heard before doing so. After the jury were dismissed, defense counsel lodged an objection to the mistrial, suggesting that under G.L. c. 234, § 34, the jury should have been told that they could continue deliberating if they wanted. After hearing that objection, and giving the prosecutor an opportunity to be heard, the judge recessed the case. Two days later, Fuentes moved to dismiss the indictments on the ground that retrial would violate the constitutional and common-law prohibition against double jeopardy. The judge denied the motion. Fuentes's G.L. c. 211, § 3, petition followed.
We review the single justice's judgment for abuse of discretion or other error of law. Where the evidence is sufficient to warrant a conviction (and Fuentes does not suggest that it was not), double jeopardy principles do not bar retrial if there was a "manifest necessity" for the declaration of a mistrial. Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974). "The question for decision, as it was before the single justice, is whether the petitioner has shown an abuse of discretion by the trial judge in declaring a mistrial."1 Id. "The `prototypical example' of a manifest necessity for a judge to declare a mistrial is a deadlocked jury." Commonwealth v. Ellis, 432 Mass. 746, 751, 739 N.E.2d 1107 (2000), quoting Commonwealth v. Andrews, 403 Mass. 441, 448-449, 530 N.E.2d 1222 (1988). We accord "great deference to the trial judge's determination" when a mistrial is "premised upon the trial judge's belief that the jury is unable to reach a verdict." Commonwealth v. Cassidy, 410 Mass. 174, 178, 571 N.E.2d 383 (1991), quoting Arizona v Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
Fuentes argues that despite the apparent deadlock, there was no manifest necessity for the mistrial because the judge neither asked the foreperson in open court whether there was any reasonable probability of unanimous verdicts nor asked if the jury would consent to further deliberations. G.L. c. 234, § 34. Nothing in our case law or in § 34 required the judge to make either inquiry as a matter of course, and the circumstances before the judge did not necessitate either inquiry. The final note from the foreperson unequivocally stated that the jury were "unable to come to a unanimous decision," in...
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