Neverson v. Com.
| Decision Date | 29 November 1989 |
| Citation | 546 N.E.2d 876,406 Mass. 174 |
| Parties | Trevor NEVERSON v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Linda J. Thompson, Springfield, for plaintiff.
Elizabeth Dunphy, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and LYNCH, O'CONNOR and GREANEY, JJ.
Trevor Neverson (defendant) was tried before a jury in the Superior Court on an indictment charging him with the murder in the first degree of his fifteen month old stepdaughter. At the conclusion of the prosecution's evidence, the trial judge granted the defendant's motion for a required finding of not guilty as to so much of the indictment as charged murder in the first degree. The judge allowed the jury to consider whether the defendant should be convicted of murder in the second degree or manslaughter. The jury were unable to agree upon a verdict, and a mistrial was declared. When the Commonwealth announced its intention to seek an immediate retrial, the defendant moved to dismiss the indictment on the ground that the prosecution's evidence at the trial was legally insufficient to warrant his conviction of murder in the second degree or manslaughter. The judge denied the motion to dismiss. He also denied a motion filed by the defendant to stay further proceedings in the Superior Court pending appellate review of his claim that double jeopardy principles barred retrial.
The defendant next sought relief before a single justice of this court by means of a petition under G.L. c. 211, § 3 (1988 ed.). The petition asked that proceedings below be stayed temporarily and that the Superior Court be directed to enter findings of not guilty on any charges that the defendant would face at retrial. The petition was not accompanied by a trial transcript which was, and still is, unavailable. However, in support of the petition, the defendant filed an extensive memorandum of law which contained a recital of the evidence presented by the Commonwealth in its case against him and which argued the merits of his petition on the double jeopardy claim. The single justice denied the petition without a hearing. The defendant has appealed. 1
A criminal defendant who raises a double jeopardy claim of substantial merit is entitled to review of the claim before he is retried. Costarelli v. Commonwealth, 374 Mass. 677, 680, 373 N.E.2d 1183 (1978). The request for review is initiated by a petition to a single justice pursuant to the provisions of G.L. c. 211, § 3. Id. Fadden v. Commonwealth, 376 Mass. 604, 606, 382 N.E.2d 1054 (1978). Utilization of that procedure applies to a properly preserved double jeopardy claim that involves contentions by the defendant that the Commonwealth's evidence was legally insufficient to warrant his conviction at trial, and, as a consequence, that his retrial is prohibited. 2 See Commonwealth v. Ginnetti, 400 Mass. 181, 182-183, 508 N.E.2d 603 (1987); Commonwealth v. Chatfield-Taylor, 399 Mass. 1, 2-3, 502 N.E.2d 512 (1987); Berry v. Commonwealth, 393 Mass. 793, 794, 473 N.E.2d 1115 (1985). The defendant correctly points out that his protection against double jeopardy in these circumstances is a guaranty against twice being placed on trial for the same offense. See Berry v. Commonwealth, supra at 798, 473 N.E.2d 1115; Costarelli v. Commonwealth, supra.
The defendant now asserts that he is not seeking review in this appeal of the merits of his double jeopardy claim. Instead, he argues that, given the importance of his right to be protected against double jeopardy, meaningful review of the claim only can be had on a complete trial transcript. As that transcript will not be prepared in the foreseeable future, 3 he insists that a stay of the proceedings in the Superior Court is mandated. We do not agree.
The question before us is whether the single justice acted properly in denying the defendant's petition. The answer to that question depends on whether the record furnished the single justice with a basis to make an intelligent decision whether the Commonwealth had presented sufficient evidence to warrant submission of the case to the jury. If the record indicates that the Commonwealth did present sufficient evidence, the defendant's double jeopardy claim would necessarily lack merit, and the single justice's order would be correct. 4
We conclude that the extensive statement of the Commonwealth's evidence set forth in the memorandum of law presented to the single justice by the defendant, containing, as it does, the defendant's own acknowledgement of the prosecution's evidence against him, furnished a sufficient basis for the single justice to decide the petition. 5 According to that statement the Commonwealth's evidence was as follows.
The victim died, according to expert medical testimony, of "blunt force trauma," intentionally inflicted by either a man or a woman. On the day of the incident, according to the defendant's statement to the police, the defendant had sole custody of the child from 2 P.M. until 11:30 P.M., when the child's mother returned home from work. He stated that he fed the child a bottle of milk at around 6 P.M. He further stated that he and the child's mother discovered the the child dead at 7:05 A.M. the following morning. Later that day, an autopsy disclosed twenty-five milliliters of white liquid in the child's stomach. According to expert medical testimony, a living child's stomach would absorb liquid within two to four hours after ingestion, but death would stop the absorption process.
A medical expert testified that, to a reasonable degree of medical certainty, the victim died between 8:30 P.M. and 4:30 A.M. Within that range, based on the victim's body temperature and the state of rigor mortis, the expert stated that 12:30 A.M. was the most likely time of death. Based on cell organization activity at the site of the injury, the expert also stated that the period between injury and death was no more than two or three hours.
The defendant argued in the Superior Court that the Commonwealth's evidence failed to distinguish adequately between the fatal injury occurring prior to 11:30 P.M. (when he had sole custody of the victim), or after 11:30 P.M. (when the victim's mother was home). In his view, the identity of the person responsible for the trauma that caused death was left to conjecture.
We conclude that a reasonable juror could have found that the victim died within four hours of her last feeding and, further, that the last feeding was the last stated feeding, the feeding at 6 P.M. So finding, that juror could further reasonably conclude that the victim died before 11:30 P.M. and, a fortiori, that she was fatally injured sometime before that hour. That...
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...and the defendant did not seek interlocutory review to challenge the sufficiency of the evidence. See Neverson v. Commonwealth, 406 Mass. 174, 175-176, 546 N.E.2d 876 (1989).Prior to the second trial, Denton filed a motion in limine to exclude evidence that he had possessed the .25 caliber ......
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...S.Ct. 2034, 52 L.Ed.2d 651 (1977), Massachusetts affords interlocutory review of double jeopardy claims. See Neverson v. Commonwealth, 406 Mass. 174, 546 N.E.2d 876, 877 (1989) ("A criminal defendant who raises a double jeopardy claim of substantial merit is entitled to review of the claim ......
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Vizcaino v. Commonwealth
...petitioned a single justice of this court for relief pursuant to [967 N.E.2d 1112]G.L. c. 211, § 3, see Neverson v. Commonwealth, 406 Mass. 174, 175–176, 546 N.E.2d 876 (1989), and the single justice reserved and reported the case without decision to the full court. We now hold that, becaus......