Perrier v. Commonwealth

• Decision Date: 25 January 2022
• Docket Number: SJC-12925
• Citation: 179 N.E.3d 567
• Parties: Joshua PERRIER v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 N.E.3d 567

Joshua PERRIER

v.COMMONWEALTH.

SJC-12925

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 4, 2021

Decided January 25, 2022.

Nicholas Matteson, for the petitioner.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

The defendant, Joshua Perrier,¹ was tried before a jury on a charge of operating a motor vehicle while under the influence of alcohol. During closing arguments, and again after the jury returned a guilty verdict, the defendant moved for a mistrial on the basis of prosecutorial misconduct. The judge denied the motion for a mistrial but granted the defendant's motion, in the alternative, for a new trial. After the judge denied the defendant's subsequent motion to dismiss the charge on double jeopardy grounds, the defendant petitioned a single justice of this court for relief under G. L. c. 211, § 3. He appeals from the single justice's denial of his petition to the full court.

Now on appeal, the defendant asks that we adopt under State law an expansion of the Federal double jeopardy principles of Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), thereby overruling our decision in Donavan v. Commonwealth, 426 Mass. 13, 685 N.E.2d 1164 (1997). Specifically, he asks us to include within the double jeopardy principles misconduct that a prosecutor knew or should have known would require a new trial, regardless of whether a defendant successfully moves for a mistrial. We decline to reconsider our holding in Donavan. We thus affirm the single justice.

Factual background. The defendant, aged nineteen, was charged by complaint with operating a motor vehicle while under the influence of alcohol. Prior to trial, the defendant filed a motion in limine seeking to preclude the Commonwealth from making references to his age. The judge allowed the motion, finding that the potential unfair prejudice of the evidence substantially outweighed its relevance.

During her closing argument, the prosecutor twice referenced the defendant's youth. The prosecutor argued that the jury could find that he was operating a motor vehicle while under the influence even if he was not driving erratically. The prosecutor told the jury, "You can have reduced judgment at the same time that you have the reflexes -- especially someone who's young, [whose] reflexes might be at their peak -- to drive the car." The prosecutor again referenced the defendant's youth, proposing a reason why he told police he had not been drinking the night in question. The prosecutor asked the jury, "Why do you think he might've said no while he was driving that car? I mean, I don't know if -- you know, probably -- maybe he's young -- maybe he was too young."

After this second reference to his age, the defendant objected. At sidebar, the prosecutor explained that she believed she was permitted to draw inferences from the appearance of the defendant. When the judge told her, "I said that [was] prejudicial," the prosecutor responded, "As to ... the testimony. This is argument." The defendant then moved for a mistrial, which was denied.

Later during her closing argument, the prosecutor asked the jury to consider a scenario in which an animal or another driver had been on the road with the defendant. The defendant objected to the Commonwealth's appeal to sympathy and asked for a limiting instruction. The judge instructed the jury to disregard appeals to sympathy in the parties’ closing arguments.

Ultimately the defendant was convicted of operating a motor vehicle while under the influence of alcohol. He orally moved for a "judgment ... staying the verdict" based on the Commonwealth's references to his age. The judge asked that the defendant file a motion requesting the appropriate relief and stayed the sentence pending the anticipated motion. The defendant thereafter filed a motion to reconsider his earlier request for a mistrial with prejudice, citing the Commonwealth's failure to abide by the motion in limine ruling and its appeal to juror sympathy. In the alternative, the defendant requested a new trial.

In its response to the defendant's motion, the Commonwealth explained that the prosecutor misunderstood the judge's ruling on the motion in limine. According to the Commonwealth, the prosecutor interpreted the ruling specifically to exclude testimony of the defendant's age of nineteen. The Commonwealth provided to the judge the prosecutor's copy of the motion, on which she allegedly wrote, "[A]llowed, as to eliciting testimony of the defendant's age of [nineteen]." The judge denied the motion for a mistrial, crediting the Commonwealth's explanation of the prosecutor's misunderstanding and finding that her actions did not "constitute deliberate, intentional and/or egregious prosecutorial misconduct sufficient to give rise to presumptive prejudice." The judge nonetheless allowed the defendant's motion for a new trial.

The defendant subsequently filed a motion to dismiss, arguing that double jeopardy precluded his retrial. The judge denied his motion, holding that double jeopardy did not bar retrial in the event of "unintentional prosecutorial mistakes," citing Donavan, 426 Mass. at 16, 685 N.E.2d 1164.

The defendant petitioned for review by a single justice under G. L. c. 211, § 3. The petition was denied on the basis that the double jeopardy claim lacked sufficient merit to warrant an interlocutory appeal, and the defendant appealed to the full court pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).

Discussion. Relief under G. L. c. 211, § 3, "is extraordinary and will be exercised only in the most exceptional circumstances." Matthews v. Appeals Court, 444 Mass. 1007, 1008, 828 N.E.2d 527 (2005), quoting Campiti v. Commonwealth, 417 Mass. 454, 455, 630 N.E.2d 596 (1994). Accordingly, we review the single justice's decision for abuse of discretion or clear error of law. Matthews, supra. The single justice determined that the defendant did not present a double jeopardy claim of substantial merit sufficient to warrant an interlocutory appeal from the denial of his motion to dismiss. We hold that this was neither an abuse of the single justice's discretion nor a clear error of law, and we therefore affirm her decision.

The Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment to the United States Constitution, protects an individual defendant from multiple prosecutions for the same offense.² Kennedy, 456 U.S. at 671 & n.3, 102 S.Ct. 2083. Massachusetts provides similar protections under State statute and common law. See Marshall v. Commonwealth, 463 Mass. 529, 534, 977 N.E.2d 40 (2012) ; G. L. c. 263, § 7. The Federal and State principles of double jeopardy protect defendants from being subjected to "embarrassment, expense and ordeal and compelling [them] to live in a continuing state of anxiety and insecurity." Donavan, 426 Mass. at 15, 685 N.E.2d 1164, quoting Commonwealth v. Andrews, 403 Mass. 441, 447, 530 N.E.2d 1222 (1988). Double jeopardy principles further allow defendants to have their trial heard by a "particular tribunal." Kennedy, supra at 672, 102 S.Ct. 2083, quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

The protection against double jeopardy does not, however, ensure an error-free trial. Donavan, 426 Mass. at 15, 685 N.E.2d 1164. For "it [would] be a rare trial of any complexity in which some proffered evidence by the prosecutor ... [would] not be found objectionable by the trial court." Kennedy, 456 U.S. at 674-675, 102 S.Ct. 2083. Accordingly, these principles do not bar retrial of a defendant in all instances. Thames v. Commonwealth, 365 Mass. 477, 479, 312 N.E.2d 569 (1974). For example, a defendant may be retried if the jury are unable to reach an agreement and are discharged.³ Id. Double jeopardy principles recognize that while defendants have a "legitimate interest in protection from unfair prosecution by the State," the Commonwealth has a coexisting interest in pursuing prosecutions of those who are guilty. Donavan, supra. Dismissal of an indictment based on double jeopardy thus is considered a "drastic remedy." Id. at 15-16, 685 N.E.2d 1164, quoting Commonwealth v. Cinelli, 389 Mass. 197, 210, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983).

When a defendant moves for a mistrial, the right to be heard by the first jury empanelled for trial is forfeited. Kennedy, 456 U.S. at 672-673, 676, 102 S.Ct. 2083. The protections against double jeopardy, therefore, ordinarily are not implicated in such circumstances. See id. at 673, 102 S.Ct. 2083. Massachusetts follows the United States Supreme Court's holding in Kennedy, which establishes a narrow rule requiring dismissal on double jeopardy grounds following a defendant's motion for mistrial. Id. at 676, 102 S.Ct. 2083. Donavan, 426 Mass. at 15, 685 N.E.2d 1164. Under the Kennedy- Donavan rule, retrial will be barred only where two predicates are met: (1) a defendant successfully moves for a mistrial; and (2) the first trial contains prosecutorial misconduct intended to goad or provoke a defendant into moving for the mistrial. Kennedy, supra. Donavan, supra at 14-15, 685 N.E.2d 1164.

The Kennedy- Donavan rule recognizes that a defendant's right to be heard by the first empanelled jury "would be a hollow shell" without protection from conduct designed to force a defendant to forgo that jury by moving for a mistrial. Kennedy, 456 U.S. at 673, 102 S.Ct. 2083. Prosecutorial misconduct absent a specific intent to goad the defendant into a mistrial does not bar retrial, however, because it does not wrest from the defendant control over such a decision. Id. at 676, 102 S.Ct. 2083. The Kennedy- Donavan rule is, therefore, a narrow rule.

In Donavan, we declined to expand the Kennedy rule under our State common law to allow dismissal of an...