Jones v. Com.

• Decision Date: 24 January 1980
• Citation: 400 N.E.2d 242,379 Mass. 607
• Parties: Herman JONES v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 242

400 N.E.2d 242

379 Mass. 607

Herman JONES v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1979.

Decided Jan. 24, 1980.

Willie J. Davis, Boston, for plaintiff.

Jeremiah P. Sullivan, Jr., Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

We granted Herman Jones's request for further appellate review ¹ to consider in what circumstances a defendant, whose trial has been interrupted by a mistrial over his objection, may be retried consistent with the guaranties against double jeopardy provided by the law of this Commonwealth and the Fifth Amendment to the Federal Constitution. See Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974); Costarelli v. Commonwealth, --- Mass. ---, --- ^a, 373 N.E.2d 1183 (1978); Benton v. Maryland, 395 U.S. 784, 794-795, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). See also G.L. c. 263, §§ 7, 8, 8A, and G.L. c. 277, § 75. Jones asserts that the Commonwealth is barred from reprosecuting him because in his case there was no "manifest necessity" for declaring a mistrial over his objection and after the evidence had been completed. We agree.

We summarize the facts. Jones and a codefendant, Frank Rivera, were indicted for the murder and armed robbery of William Dowling. Each defendant was also indicted for both armed robbery and assault and battery by means of a dangerous weapon of George Miller.

The trial of the two defendants, who were represented by separate counsel, commenced in mid-summer. Among the many motions filed by Jones were a motion for severance and a motion for individual interrogation of the jurors. Jones also requested that the judge ask approximately thirty-one questions in addition to the statutory questions. See G.L. c. 234, § 28. Both motions were denied and exceptions noted. ²

During the empanelment of the jury the judge made a number of caustic remarks about both defense counsel, ³ apparently prompted by their conduct. Although Jones's motion for additional questioning of the jurors was initially denied, the judge finally decided to ask the questions proposed by Jones. In the course of reading the questions to the jurors as a group, the judge and Jones's counsel engaged in some verbal clashes. The most serious exchange between the judge and Jones's counsel which occurred during the jury empanelment tended to disparage Jones's counsel's legal ability. ⁴

Rivera's counsel objected to the judge's remarks directed at him and attempted to make a motion which the judge declined to hear until "after court." After the jurors were excused Rivera's counsel made an oral motion for mistrial in which Jones's counsel joined. ⁵ The judge found that the conduct of both counsel was "scandalous" and denied the oral motion for mistrial. ⁶

Jones filed a written motion for mistrial the next morning. ⁷ No references to the written motion are found in the record until the discussion, six days later, as to whether a mistrial ought to be granted. At the start of the third day of trial, just prior to the Commonwealth's opening, the judge instructed the jury to disregard any colloquy between counsel and the court. ⁸

In its opening the Commonwealth claimed that it would prove beyond a reasonable doubt that Jones robbed one George Miller and committed an assault and battery by means of a dangerous weapon (a knife) on Miller. The Commonwealth alleged that Jones would be identified as the person who stabbed one William Dowling in the chest. The Commonwealth said that Miller would "positively identif(y) Herman Jones as the . . . person who had robbed him (Miller) and put the knife to his (Miller's) neck, and whom he had seen run from the scene" where Dowling was stabbed.

Contrary to the Commonwealth's expectations as expressed in its opening, Miller did not identify Jones as being at the scene of the crime. As a result of the failure of the Commonwealth's proof, counsel for Jones said little or nothing for the first two days of testimony. Counsel for Jones, however, renewed his motion for severance when it appeared that cross-examination by Rivera's counsel might harm his client's interests. ⁹ Although Jones's counsel was silent during the Commonwealth's case, there were frequent exchanges between the judge and Rivera's counsel. ¹⁰

During the Commonwealth's presentation of its case-in-chief the judge ruled favorably on an evidentiary request made by Jones's counsel. Jones obtained directed verdicts at the close of the Commonwealth's case on two of the four indictments.

Jones presented evidence which, if believed, would have shown him to be elsewhere at the time of the crime. After the Commonwealth and the defendant had presented their evidence, ¹¹ Rivera's counsel began presenting Rivera's defense. At this time, the colloquies between Rivera's counsel and the judge escalated both in frequency and hostility. Rivera's counsel was continually admonished for asking leading questions during Rivera's direct examination. Finally, the judge sharply rebuked Rivera for interjecting a statement while the judge was discussing the admissibility of an answer with his attorney. ¹²

At this point, the judge ordered the jury to take a recess, and Rivera's counsel moved for a mistrial. Jones's attorney objected to a declaration of a mistrial at that time. The prosecutor indicated he was prepared to go forward. The judge informed Jones's lawyer that he was allowing the previous motion for a mistrial, which had been taken under advisement. Jones's counsel then formally waived the earlier motion, explaining that it had been based on the events occurring during empanelment and that any prejudice arising in that regard had since been abated. ¹³

In responding to those objections, the judge said, "I just don't think if one defendant is removed for whatever reason, that it should go, and I'll give you a mistrial, which you asked for originally." The judge further noted that he had granted the motion before it was waived. He went on: "Beyond you, . . . and beyond me and beyond everybody, stand Rivera and Jones, and right now I'll take my share of it. Things have got out of hand and perhaps they were from the beginning, so with that in mind, I allow both your motions which were filed." The record reveals that the judge was concerned about the possibility of jury bias or prejudice. ¹⁴ Jones's counsel asked for a severance which the judge allowed saying "I don't think anybody should have to go through that twice." ¹⁵ The next day, however, the judge reversed his ruling granting a severance. ¹⁶

Thereafter, Jones's motion to dismiss the remaining indictments on double jeopardy grounds was denied. Pursuant to G.L. c. 211, § 3, Jones sought a stay of retrial claiming that to reprosecute him would violate the common law of this Commonwealth against being twice in jeopardy as well as the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution. See Costarelli v. Commonwealth, --- Mass. ---, --- ^b, 373 N.E.2d 1183 (1978). Accord, Abney v. United States, 431 U.S. 651, 654-662, 97 S.Ct. 2034, 2037-2041, 52 L.Ed.2d 651 (1977). A single justice of this court granted the stay and transferred the matter to a single justice of the Appeals Court.

The single justice of the Appeals Court reserved and reported the question of "whether the Commonwealth is barred by the double jeopardy clause of the Fifth Amendment to the Constitution of the United States from proceeding with the trial of Jones . . . on the criminal indictments at issue, or, alternatively, whether the record as a whole reveals that there was 'manifest necessity' for the mistrial granted by the trial judge over the objection of the defendant." Jones v. Commonwealth, --- Mass.App. --- ^c, 387 N.E.2d 1187 (1979).

The Appeals Court concluded that Jones did not consent to the mistrial by filing a motion for mistrial based on the jury empanelment, that there was no judicial overreaching ¹⁷ and that on the record the Commonwealth had demonstrated a "manifest necessity" for the mistrial. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). We agree with the Appeals Court that Jones did not consent to the mistrial. However, we think that the record does not support a conclusion that there was "manifest necessity" for the mistrial, and we hold that the Commonwealth is barred from reprosecuting Jones.

Jones asserts that there was no "manifest necessity" for the mistrial in his case. See United States v. Perez, 9 Wheat. (22 U.S.) 579, 580, 6 L.Ed. 165 (1824). Jones claims that since both the Commonwealth and the defendant had rested, severance was the appropriate remedy. Severance, Jones contends, would have permitted him to continue with the first tribunal selected to hear his case, a tribunal he believed to be "favorably disposed to his fate." United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1970). ¹⁸ Moreover, he contends that a severance would have also served "the public interest in insuring that justice is meted out to offenders." United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978). Arizona v. Washington, 434 U.S. 497, 506, 98 S.Ct. 824, 830, 154 L.Ed.2d 717 (1978). Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963). Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). See Note, Mistrials and Double Jeopardy, 15 Am.Crim.L.Rev. 169, 172, 182-183 (1977). We agree.

There is no hard and fast rule as to whether severance should be granted or denied in joint trials. ¹⁹ Courts which have declined to sever and have upheld the declaration of a mistrial as to all defendants have based their decision, first, on the complexity of the case, and second, on the proposition that in a complex, multi-defendant case, fairness to all the defendants...