Lydon v. Com.

• Citation: 409 N.E.2d 745,381 Mass. 356
• Parties: Michael LYDON et al. 1 v. COMMONWEALTH.
• Decision Date: 22 August 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 745

409 N.E.2d 745

381 Mass. 356

Michael LYDON et al. ¹ v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1980.

Decided Aug. 22, 1980.

Bonnie Spaccarelli Hannon (Eva S. Nilsen, with her), for Michael lydon.

Kenneth F. D'Arcy, Cambridge, for Robert McDonald.

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

Richard J. Hayes, William J. Leahy, Martin R. Rosenthal and Brownlow M. Speer, Boston, for Massachusetts Defenders Committee, amicus curiae, submitted a brief.

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

WILKINS, Justice.

This petition for relief under the general superintendence powers of this court (G.L. c. 211, § 3) is one of three similar cases decided today that raise questions concerning the application of the principles of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), to criminal cases in which the accused has had a trial before a judge without a jury (a bench trial), and, dissatisfied with the result of the bench trial, has sought a de novo trial before a jury. The petitioners, whom we shall call the defendants, argue that the double jeopardy clause of the Fifth Amendment to the Constitution of the United States, as construed in Burks v. United States, supra, requires that the charges against each be dismissed following his bench trial because the evidence at the bench trial was insufficient to warrant the convictions.

Under the statutory provisions concerning the trial of cases in the Municipal Court of the City of Boston (Municipal Court), each defendant has the right to a jury trial in the first instance, but the defendants in this case elected instead to have a bench trial, preserving their right to have a jury trial if they were dissatisfied with the result of the bench trial. See G.L. c. 218, § 26A, which is set forth in the margin. ² The defendants argue to the judge at their joint bench trial in the Municipal Court that the evidence did not warrant their convictions. The judge, however, found them guilty, and the defendants exercised their statutory right to appeal for a trial by a jury of six. Before the jury trial commenced, however, the defendants moved in the Municipal Court's jury trial session to have the charges against them dismissed because the evidence at the bench trial was inadequate to justify their convictions. When this motion was denied, the defendants filed a petition in the single justice session of this court seeking relief under G.L. c. 211, § 3. The single justice stayed the trial of these cases in the jury session of the Municipal Court, and, accepting the defendants' claim that the evidence at the bench trial did not warrant their convictions, reserved and reported two questions to the full bench, which are set forth in the margin. ³ The first of these questions inquires whether a defendant would be denied his right not to be placed in double jeopardy if he were required to go through a jury trial, when the evidence at the bench trial was inadequate to support his conviction. The second question concerns the procedural issue whether, assuming the existence of a double jeopardy claim, a jury-trial judge could or should reconsider the question of the sufficiency of the evidence which a bench-trial judge had decided adversely to a defendant.

The issues are important to the effective operation of the two-tier trial system in effect in the District and Municipal Courts of the Commonwealth. The present two-tier system was adopted, effective January 1, 1979, as part of the reorganization of the Commonwealth's judicial system pursuant to Chapter 478 of the Act of 1978, commonly known as the Court Reorganization Act. In order to achieve a prompt and efficient disposition of the great number of criminal complaints filed each year in the District and Municipal Courts of the Commonwealth, involving relatively minor crimes, the concept of a bench trial was retained from the Commonwealth's earlier two-tier procedure. However, the Court Reorganization Act introduced a procedure that gave a defendant the right to a jury trial without the necessity of a prior bench trial. ⁴ As we have noted, a criminal defendant now is granted the choice of a jury trial in the first instance or a bench trial followed, if he so requests, by a de novo trial before a jury (or another judge, if the defendant waives his jury right). ⁵

The circumstances of the defendants' trial are not important to the resolution of the questions of law reported to the court. The single justice did not report the issue whether the evidence warranted the defendants' convictions. ⁶ We treat the case as presenting squarely the question whether double jeopardy principles bar the retrial of a defendant who voluntarily chose to have a bench trial when the evidence at the bench trial was inadequate to warrant a conviction. We conclude that the defendants' voluntary choice of a bench trial and subsequent choice of a trial de novo create a situation in which double jeopardy is not implicated. Thus, the defendants' constitutional challenge to the two-tier trial system, which provides a trial de novo as the sole means of obtaining relief from the unsatisfactory result in their bench trial, is without merit.

The defendants argue that they should not be required to undergo a second trial in order to have their convictions reviewed, because the evidence at their first trial was insufficient to warrant a conviction. They claim that a trial de novo would put them twice in jeopardy for the same crime, in contravention of the Fifth Amendment to the Constitution of the United States, made applicable to the States through the Fourteenth Amendment. ⁷ Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The defendants rely on Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), to support their double jeopardy claim. ⁸ In that case, the Sixth Circuit Court of Appeals had reversed Burks's conviction because the evidence did not warrant a guilty finding and had remanded the case for consideration whether the circumstances warranted a new trial. United States v. Burks, 547 F.2d 968, 970 (6th Cir. 1976). The Supreme Court held, however, that it would be improper to retry Burks. The Court stated that a judgment of acquittal was required notwithstanding the fact that Burks had requested a new trial. 437 U.S. at 17-18, 98 S.Ct. at 2150-2151.

The Burks case involved different circumstances from those before us because it dealt with an appellate determination that the evidence at trial did not warrant a conviction and a further determination that the double jeopardy clause barred a retrial in those circumstances. Burks was tried in a judicial system that provided for appellate review. No reviewing court has ruled on the sufficiency of the evidence at the bench trial in the present case. Under the two- tier system as it is designed to operate, no court would ever consider this issue. Thus, Burks v. United States is not applicable. The Court's holding in the Burks case was that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient." 437 U.S. at 18, 98 S.Ct. at 2150 (emphasis supplied).

The Court in the Burks case did not consider the question involved in the case before us, namely, whether under double jeopardy principles a defendant convicted on inadequate evidence at a bench trial has a right to a reconsideration of that ruling prior to a trial de novo. The defendants seek to extend the holding in Burks v. United States, supra, by arguing that that case requires the Commonwealth to provide a procedure by which the defendants can have another judge pass on the sufficiency of the evidence presented at his bench trial.

The defendants are correct in stating that, if they were to obtain a judgment of acquittal due to the insufficiency of evidence presented at their trial, they could not be retried. Double jeopardy protection under the Federal Constitution is afforded to criminal defendants regardless of whether such acquittal occurs at a bench trial, Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904), at a jury trial, United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896), or on appeal Burks v. United States, supra. Massachusetts heeds this constitutional mandate. ⁹ Ludwig v. Massachusetts, 427 U.S. 618, 631, 96 S.Ct. 2781, 2788, 49 L.Ed.2d 732 (1976). But double jeopardy protection is not applicable to a defendant who is convicted and seeks reversal of such conviction by resort to a second-tier trial. The distinction between a convicted defendant and an acquitted defendant in terms of double jeopardy protection was established in United States v. Ball, supra, 163 U.S. at 671-672, 16 S.Ct. at 1195-1196. The validity of this distinction was reconfirmed in United States v. Scott, 437 U.S. 82, 88-89, 98 S.Ct. 2187, 2192-2193, 57 L.Ed.2d 65 (1978), ¹⁰ a case decided the same day as Burks v. United States, supra.

The defendants' argument that the Commonwealth has no legitimate state interest in retrying them overlooks the fact that the Commonwealth did not seek to retry them. The defendants were convicted of the crime of possession of burglarious instruments with the intent to commit larceny. The Commonwealth was content with that disposition. Although the defendants argue that the findings were erroneous, the convictions stood until the defendants requested a trial de novo, which was the only avenue of relief available to them. ¹¹ The Commonwealth did not force the defendants to submit to a second trial. It simply did not provide the defendants a right of appeal or other review from their bench trial. None is constitutionally required. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).

A defendant's choice to have a...