Commonwealth v. Clemmons

346 N.E.2d 864, 370 Mass. 288, 1976 Mass. LEXIS 980

• Court: Massachusetts Supreme Judicial Court
• Decided: May 13, 1976
• Status: Published

Opinions

Hennessey, C.J.

In this appeal the defendant challenges his conviction in the Superior Court of possession of heroin on the ground that he had previously been put in jeopardy for the same offense in the Municipal Court of the City of Boston. His appeal is before this court under the provisions of G. L. c. 278, §§ 33A-33G. We sustain the defendant’s contention and we order a judgment of not guilty to be entered.

We summarize the facts as determined from a stipulation filed by the parties and the transcript of the proceedings below. On December 22, 1973, the defendant was arrested by members of the drug control unit of the Boston police department. He was booked on a charge of possession of heroin with intent to distribute.

The application for a complaint, typed by a police officer, indicated the charge to be under G. L. c. 94C, § 32 (possession of heroin with intent to distribute), but the accompanying narrative in the application described the offense as only possession of heroin. Detective Joseph Smith of the drug control unit presented this application for a complaint to a judge of the Municipal Court on December 24, 1973. Detective Smith, at the judge’s request, recounted the circumstances surrounding the defendant’s arrest, including the fact that the defendant was arrested in the process of what the police believed to be a sale of drugs and that twenty-six “decks” of heroin were seized either on or near the defendant. The judge initialed the application for a complaint, whereupon it was forwarded to the clerk’s office.

The clerk, failing to note the discrepancy in the application between the statutory charge and the narrative charge, issued a complaint charging the defendant with simple possession of heroin. Detective Smith signed the complaint under oath administered by the clerk.

On December 24, 1973, the defendant was arraigned in the Municipal Court on the charge of possession of heroin, with Detective Smith in attendance. On January 30, 1974, a proceeding was held in the Municipal Court at which Detective Frost, one of the arresting officers, was the prosecutor. It would appear that Detective Frost believed that the complaint charged possession of heroin with intent to distribute in violation of G. L. c. 94C, § 32, an offense outside the final jurisdiction of the Municipal Court (see G. L. c. 218, § 26) and that, therefore, a probable cause hearing was being held. See G. L. c. 218, § 30. The defendant and his attorney believed that a trial on the charge of possession, an offense within the court’s jurisdiction, was commencing. No statement as to the nature of the proceedings was made by the judge or anyone else.¹

Detective Frost was sworn and testified as the Commonwealth’s first witness with respect to the events surrounding defendant’s arrest. Prior to cross-examination of Detective Frost by defense counsel, the presiding judge asked why the complaint was for simple possession and not possession with intent to distribute. Detective Frost responded that he believed that the complaint was for possession of heroin with intent to distribute.

Over the defendant’s objection, the judge allowed the complaint to be amended so as to read possession of heroin with intent to distribute. The proceeding was discontinued, and on March 19, 1974, a probable cause hearing was held before this same judge of the Municipal Court. The judge, finding probable cause, bound the defendant over to the grand jury, which subsequently returned an indictment charging the defendant with possession of heroin with intent to distribute.

The defendant’s motion to dismiss the indictment on the ground of prior jeopardy was denied by a judge in the Superior Court in Suffolk County. Thereafter, the defendant was tried by a jury and found guilty on so much of the indictment as charged possession of heroin. The defendant was sentenced to two years in a house of correction, execution of which was stayed pending appeal.

At the outset, we briefly address the question whether the initial proceeding in the Municipal Court constituted a trial on the merits, for if a preliminary hearing to determine probable cause was being conducted, jeopardy could not attach under the reasoning of Commonwealth v. Britt, 362 Mass. 325, 330 (1972), and Commonwealth v. Mahoney, 331 Mass. 510, 511-512 (1954). See Burhoe v. Byrne, 289 F. Supp. 408, 411 (D. Mass. 1968). There is no question that the judge in the Municipal Court had before him a valid complaint charging the defendant with simple possession of heroin. This crime, as defined in G. L. c. 94C, § 34, is a misdemeanor within the final jurisdiction of the Municipal Court. There is no indication, as required by Corey v. Commonwealth, 364 Mass. 137, 141 n.7 (1973), that the judge was considering declining jurisdiction as permitted under G. L. c. 218, § 30. Accordingly, we must infer that the judge intended to exercise jurisdiction and that a trial on the charge of possession of heroin was being held in the Municipal Court on January 30, 1974.² The fact that the prosecutor, Detective Frost, mistakenly thought that a probable cause hearing on the charge of possession with intent to distribute was being conducted is of no consequence, for no complaint had been issued for that offense.

Having concluded that a trial on the merits had begun, we further find that jeopardy had attached, for the judge had begun to hear evidence. Serfass v. United States, 420 (1975). This court has adhered consistently to the view that acquittal or conviction is not a condition precedent to jeopardy attaching, but rather that jeopardy attaches when the defendant is put on trial. Commonwealth v. Hart, 149 Mass. 7, 9 (1889). Commonwealth v. McCormick, 130 Mass. 61, (1881). See Stokes v. Commonwealth, 368 Mass. 754, 760 (1975), citing Breed v. Jones, 421 U.S. 519, 531 (1975). Once Detective Frost had been sworn and had testified, the defendant was “put to trial before the trier of facts.” United States v. Jorn, 400 U.S. 470, 479 (1971). Cf. Commonwealth v. Micheli, 258 Mass. 89,91 (1927).

Although we find that the defendant had been placed in jeopardy, this conclusion “begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Illinois v. Somerville, 410 U.S. 458, 467 (1973). In light of our determination that jeopardy had attached, we are called on to assess the propriety of the judge’s decision to discontinue the proceeding, over the defendant’s objection, so as to permit amendment of the complaint. It is our opinion that the termination of the trial in this case for the purpose of trying the defendant for a greater offense was not required by “ ‘manifest necessity’ or the ‘ends of public justice.’ ” Id. at 468.

It is well settled that a defendant has a “valued right to have his trial completed by a particular tribunal____” Wade v. Hunter, 336 U.S. 684, 689 (1949). See Commonwealth v. Dascalakis, 246 Mass. 12, 18 (1923); Commonwealth v. Micheli, supra at 92. When a judge, acting without the defendant’s consent, aborts the proceeding, as was done in the present case, the defendant is deprived of this right to have his case decided on the merits. See United States v. Jorn, supra at 484. Nonetheless, we recognize that this right must in some instances be subordinated to the ends of public justice. See Thames v. Commonwealth, 365 Mass. 477, 479 (1974); Commonwealth v. Juliano, 358 Mass. 465, 467 (1970) ; Commonwealth v. McCormick, 130 Mass. 61, 62 (1881). As was said in Commonwealth v. Juliano, supra at 467, “The power given to the court [to end a trial] cannot be exercised arbitrarily or without good cause and can only be used for the protection of the public and the security of the defendant and his right to an impartial trial.” A trial may be aborted “by reason of some physical or moral necessity arising from no fault or neglect of the government. When such is the case, the trial may be stopped, and the defendant will not be protected from being afterwards tried upon the same indictment.” Ibid., quoting from Commonwealth v. McCormick, supra at 62.

Measured against these standards, we cannot say that there was a “manifest necessity” for the judge’s action. Unlike the situation in Illinois v. Somerville, supra, the defendant in the present case was placed on trial on a valid complaint. The termination of the trial for what amounted to prosecutorial error or oversight in not charging the defendant with the more serious offense of possession of heroin with intent to distribute cannot justify the suspension of a trial on a valid complaint when done over the defendant’s objection. If a prosecutor or judge may not subject a defendant to a second prosecution by discontinuing a trial in order to afford the prosecution a more favorable opportunity to convict (Downum v. United States, 372 U.S. 734, 736 [1963]; Green v. United States, 355 U.S. 184, 188 [1957]), it cannot reasonably be argued that a trial may be terminated in order to provide the State with a more favorable opportunity to convict on a more serious charge, carrying a greater punishment. The conclusion we reach is consistent with that of other jurisdictions which have considered the question. See, e.g., People ex rel. Blue v. Kearney, 181 Misc. 981 (Sup. Ct. 1943), aff’d, 292 N.Y. 679 (1944); State v. Birckhead, 256 N.C. 494 (1962); Annot., 6 A.L.R.3d 905 (1966, Supp. 1975), and cases cited therein.

Although we conclude that jeopardy had attached and that the judge’s decision to terminate the proceeding did not comport with the standard of “manifest necessity,” the question remains whether the defendant was twice put in jeopardy for the same offense. There is no doubt in this case that the charge of possession of heroin and possession of heroin with intent to distribute constitute “the same offense” as that term has been applied by this court in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), and succeeding cases. See Kuklis v. Commonwealth, 361 Mass. 302, 306 n.2 (1972). As we said in Kuklis, “Since the same time, place and type of drug were alleged in each charge, the indictment for possession with intent to sell expressed no more than an aggravated form of simple possession.” Id. at 307-308. Nonetheless, the Commonwealth argues that the defendant’s conviction should not be reversed on double jeopardy grounds, because, under the holding of Commonwealth v. Mahoney, 331 Mass. 510 (1954), it is permissible to try a defendant in the Municipal Court for possession and later to prosecute him for possession with intent to distribute, since the lower court has no jurisdiction over the latter, more serious offense.

We agree that the prosecution in Superior Court for possession with intent to distribute, an offense outside the jurisdiction of the Municipal Court, was not barred by the initial proceeding on the lesser offense of possession under the reasoning set forth in Commonwealth v. Mahoney, supra at 514, Commonwealth v. Jones, 288 Mass. 150, 152 (1934), and Commonwealth v. McCan, 277 Mass. 199, 204-206 (1931).³ But it is our belief that these decisions are not dispositive of the case before us, for in none of them was the defendant, as in the present case, convicted of the lesser offense, the very offense for which the defendant was tried in the lower court.

While it is true that in Mahoney the defendant’s convictions in the lower court of the misdemeanors of assault and battery and larceny were no bar to a subsequent conviction in Superior Court of the felony of robbery, this result was based on the exception to the rule of former jeopardy which provides “that a conviction or acquittal of a minor statutory offence in an inferior court does not bar prosecution for a higher crime of which the inferior court has no jurisdiction.” Commonwealth v. Jones, supra at 152. This exception is inapplicable to the case before us since here the defendant was tried in Superior Court and convicted of an offense over which the lower court had jurisdiction. Considering the constitutionally mandated bar on double jeopardy, we cannot, as urged by the Commonwealth, extend the rule in Mahoney so as to sanction the conviction in this case of the lesser offense on the trial for the greater offense. To conclude otherwise would be contrary to the United States Constitution’s guaranty against being placed in jeopardy twice.

In support of our conclusion we note that both Diaz v. United States, 223 U.S. 442 (1912), and Commonwealth v. McCan, supra, clearly establish that a defendant may not be subjected to a subsequent prosecution in Superior Court on the lesser charge. In Diaz, the Supreme Court concluded that the accused was protected, due to his prior trial for assault and battery, “from being again prosecuted for the assault and battery, and therefore [it was] required that the latter be not treated as included, as a lesser offense, in the charge of homicide, as otherwise might have been done----” 223 U.S. at 449. Cited with approval in Commonwealth v. McCan, supra at 204. To comply with the double jeopardy clause, the judge may not by his charge, as was done in the present case, permit the jury to consider the lesser offense on a prosecution for the greater where the defendant has previously been prosecuted for his lesser included offense. See A.L.I. Double Jeopardy 137 (1935). Cf. Commonwealth v. Vanetzian, 350 Mass. 491, 494 (1966); Bennett v. State, 229 Md. 208, 219 (1962). Accordingly, the judgment must be reversed, the verdict set aside, and a judgment of not guilty entered.

So ordered.

1 We receive with respect the Commonwealth’s contention that the great volume of criminal business in the Municipal Court may well be the reason for this apparent misunderstanding among the participants. Nevertheless, as will be seen, this is not material to our reasoning or the result in this opinion.

2 We do not mean to imply, as suggested by the dissent, that Corey imposes “a rule of constitutional implications.” But we do believe that it is fair to infer that a trial on the merits was being held, since the judge had a valid complaint before him charging an offense over which the Municipal Court had final jurisdiction, but nevertheless, he failed to indicate, contrary to Corey, whether he was conducting a probable cause hearing or a trial on the merits. In these circumstances, there was every reason for the defendant to believe that a trial was being conducted.

Nor should it be maintained, as asserted by the dissent, that we have, by this decision, added another step to criminal prosecutions. While we adhere to the position announced in Corey, supra at 141 n.7, the implications of that footnote are not before us in this case. Our holding is limited to the situation where a trial on a valid complaint is aborted without justification over the defendant’s objection, and the defendant is subsequently convicted in Superior Court of the lesser offense, the very offense for which he was tried in the Municipal Court. Such an occurrence is undoubtedly rare.

3 Although Mahoney does allow for a subsequent prosecution on the greater offense, it does not follow that a defendant may be punished for both the lesser and greater offenses. See Gallinaro v. Commonwealth, 362 Mass. 728 (1973), and Kuklis v. Commonwealth, supra, which deal with the problem of duplicitous punishments for the same offense.