NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1127
COMMONWEALTH
vs.
REGINALD GRANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A judge of the District Court declared a mistrial without
prejudice after the person whom the Commonwealth alleged was the
victim (victim) began to testify but failed to appear in court
on the following day of trial, thereby preventing defense
counsel from concluding his cross-examination of her.1 Three
months after declaring a mistrial, the judge allowed the
Commonwealth's motion for a new trial date.2 The defendant now
1The defendant was charged with two counts of indecent assault and battery on a child under the age of fourteen (G. L. c. 265, § 13B), and one count of open and gross lewdness (G. L. c. 272, § 16).
2The defendant appealed from the judge's ruling allowing a new trial to a single justice of the Supreme Judicial Court, who granted the defendant leave to pursue an interlocutory appeal in this court. appeals from this order, arguing a retrial is impermissibly
prejudicial because (1) the judge's declaration of mistrial was
not supported by manifest necessity, and (2) the trial
prosecutor goaded the defendant into seeking a mistrial.
Because we cannot conclusively determine from this record
whether the judge found manifest necessity before ordering a
mistrial without prejudice and allowing a retrial, we vacate the
order allowing the Commonwealth's motion and denying the
defendant's motion for reconsideration, and remand for further
findings.
Background. The facts of the proceedings are well known to
the parties and will be repeated here only as necessary. On the
first day of trial,3 April 26, the Commonwealth completed its
direct examination of the victim and defense counsel started,
but did not finish, his cross-examination. On the following
day, the Commonwealth reported to the judge that the victim and
the victim's mother, who was also scheduled to testify, decided
they would not be returning to court for the conclusion of the
trial. The Commonwealth informed the court that it would not be
asking for a capias to secure the victim's presence due to her
age and stated it "understand[s] that that will mean a
3 Jury empanelment began on Tuesday, April 25, 2023. A full jury were empaneled the following day, at which point the trial commenced.
2 mistrial." The prosecutor then informed the judge that the
Commonwealth "has no witnesses here today" and would leave the
issue up to the judge's discretion.4 Defense counsel then
requested a mistrial with prejudice. The Commonwealth requested
the mistrial be without prejudice.
After a brief recess, the courtroom clerk informed the
judge and the parties that the victim had called the clerk's
office and expressed her desire to speak with the Commonwealth.
The judge then took another brief recess to allow the
Commonwealth to speak with the victim. After reconvening, the
Commonwealth conveyed that the victim had changed her mind, and
while she would not be able to come to court that day, she
wanted to come finish her testimony on the following day
(Friday). At this point, the Commonwealth asked for a one-day
continuance. The judge briefly discussed with the parties the
option of continuing with the trial on the day the Commonwealth
was requesting, but determined it was not feasible. As a
result, the Commonwealth asked for a mistrial without prejudice
for the second time. Defense counsel again requested a
mistrial, and emphasized it should be with prejudice, suggesting
to the judge that "the standard . . . is whether there was
4 We note the defendant did not move to strike the victim's testimony and ask for a directed verdict.
3 prosecutorial misconduct in connection with the reason for the
mistrial." The judge then denied the Commonwealth's request for
a one-day continuance and addressed the Commonwealth, stating,
"I gave you an opportunity to see if your witness could get here
this morning. You've reported that that's also not doable for
the family. Given the intentional absence of your witnesses,
two in this instance, this case is going to be declared a
mistrial."
The Commonwealth thereafter filed a motion for a new trial
date. The defendant opposed the motion on the basis that a
retrial would violate his double jeopardy rights. The judge
treated the defendant's opposition as a motion to reconsider her
decision to declare a mistrial. In allowing the Commonwealth's
motion and denying reconsideration of her earlier ruling, the
judge found that there was no prosecutorial misconduct leading
up to her decision to declare a mistrial.
Discussion. "The decision to allow a retrial after a
mistrial implicates a defendant's right, under the Fifth
Amendment to the United States Constitution, as well as
Massachusetts statutory and common-law protections, against
being placed in jeopardy twice for the same criminal offense."
Commonwealth v. Bryan, 476 Mass. 351, 356 (2017). "[R]etrial
may be permissible after a mistrial if a defendant consented to
4 the mistrial . . . or if there was a manifest necessity to
declare the mistrial." Commonwealth v. Edwards, 491 Mass. 1, 12
(2022).
1. Consent. The Commonwealth argues the defendant
consented to retrial because the mistrial was declared on the
defendant's motion. We disagree.
A defendant may consent to a mistrial either explicitly,
"by moving for one or by agreeing to one proposed by the
prosecutor or judge," or implicitly, "where [they] had the
opportunity to object [to a declaration of a mistrial] and
failed to do so" (quotations and citations omitted). Edwards,
491 Mass. at 13.
Here, the defendant initially moved for a mistrial, and
explicitly asked that prejudice attach to the judge's
declaration of a mistrial, when he first learned that the victim
refused to come to court and would not be present to finish her
testimony.5 Defense counsel again voiced his opposition to a
mistrial without prejudice when the Commonwealth requested a
continuance. At no time did counsel suggest the defendant was
5 The Commonwealth provided a rationale for the victim's absence, reporting the victim "[was] very scared about testifying because . . . while she was testifying[,] she felt that the defendant was snickering and laughing at what she said." Defense counsel disputed this account, stating "I was standing right next to [the defendant]. Your Honor is in plain view of him."
5 amenable to a mistrial without prejudice.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1127
COMMONWEALTH
vs.
REGINALD GRANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A judge of the District Court declared a mistrial without
prejudice after the person whom the Commonwealth alleged was the
victim (victim) began to testify but failed to appear in court
on the following day of trial, thereby preventing defense
counsel from concluding his cross-examination of her.1 Three
months after declaring a mistrial, the judge allowed the
Commonwealth's motion for a new trial date.2 The defendant now
1The defendant was charged with two counts of indecent assault and battery on a child under the age of fourteen (G. L. c. 265, § 13B), and one count of open and gross lewdness (G. L. c. 272, § 16).
2The defendant appealed from the judge's ruling allowing a new trial to a single justice of the Supreme Judicial Court, who granted the defendant leave to pursue an interlocutory appeal in this court. appeals from this order, arguing a retrial is impermissibly
prejudicial because (1) the judge's declaration of mistrial was
not supported by manifest necessity, and (2) the trial
prosecutor goaded the defendant into seeking a mistrial.
Because we cannot conclusively determine from this record
whether the judge found manifest necessity before ordering a
mistrial without prejudice and allowing a retrial, we vacate the
order allowing the Commonwealth's motion and denying the
defendant's motion for reconsideration, and remand for further
findings.
Background. The facts of the proceedings are well known to
the parties and will be repeated here only as necessary. On the
first day of trial,3 April 26, the Commonwealth completed its
direct examination of the victim and defense counsel started,
but did not finish, his cross-examination. On the following
day, the Commonwealth reported to the judge that the victim and
the victim's mother, who was also scheduled to testify, decided
they would not be returning to court for the conclusion of the
trial. The Commonwealth informed the court that it would not be
asking for a capias to secure the victim's presence due to her
age and stated it "understand[s] that that will mean a
3 Jury empanelment began on Tuesday, April 25, 2023. A full jury were empaneled the following day, at which point the trial commenced.
2 mistrial." The prosecutor then informed the judge that the
Commonwealth "has no witnesses here today" and would leave the
issue up to the judge's discretion.4 Defense counsel then
requested a mistrial with prejudice. The Commonwealth requested
the mistrial be without prejudice.
After a brief recess, the courtroom clerk informed the
judge and the parties that the victim had called the clerk's
office and expressed her desire to speak with the Commonwealth.
The judge then took another brief recess to allow the
Commonwealth to speak with the victim. After reconvening, the
Commonwealth conveyed that the victim had changed her mind, and
while she would not be able to come to court that day, she
wanted to come finish her testimony on the following day
(Friday). At this point, the Commonwealth asked for a one-day
continuance. The judge briefly discussed with the parties the
option of continuing with the trial on the day the Commonwealth
was requesting, but determined it was not feasible. As a
result, the Commonwealth asked for a mistrial without prejudice
for the second time. Defense counsel again requested a
mistrial, and emphasized it should be with prejudice, suggesting
to the judge that "the standard . . . is whether there was
4 We note the defendant did not move to strike the victim's testimony and ask for a directed verdict.
3 prosecutorial misconduct in connection with the reason for the
mistrial." The judge then denied the Commonwealth's request for
a one-day continuance and addressed the Commonwealth, stating,
"I gave you an opportunity to see if your witness could get here
this morning. You've reported that that's also not doable for
the family. Given the intentional absence of your witnesses,
two in this instance, this case is going to be declared a
mistrial."
The Commonwealth thereafter filed a motion for a new trial
date. The defendant opposed the motion on the basis that a
retrial would violate his double jeopardy rights. The judge
treated the defendant's opposition as a motion to reconsider her
decision to declare a mistrial. In allowing the Commonwealth's
motion and denying reconsideration of her earlier ruling, the
judge found that there was no prosecutorial misconduct leading
up to her decision to declare a mistrial.
Discussion. "The decision to allow a retrial after a
mistrial implicates a defendant's right, under the Fifth
Amendment to the United States Constitution, as well as
Massachusetts statutory and common-law protections, against
being placed in jeopardy twice for the same criminal offense."
Commonwealth v. Bryan, 476 Mass. 351, 356 (2017). "[R]etrial
may be permissible after a mistrial if a defendant consented to
4 the mistrial . . . or if there was a manifest necessity to
declare the mistrial." Commonwealth v. Edwards, 491 Mass. 1, 12
(2022).
1. Consent. The Commonwealth argues the defendant
consented to retrial because the mistrial was declared on the
defendant's motion. We disagree.
A defendant may consent to a mistrial either explicitly,
"by moving for one or by agreeing to one proposed by the
prosecutor or judge," or implicitly, "where [they] had the
opportunity to object [to a declaration of a mistrial] and
failed to do so" (quotations and citations omitted). Edwards,
491 Mass. at 13.
Here, the defendant initially moved for a mistrial, and
explicitly asked that prejudice attach to the judge's
declaration of a mistrial, when he first learned that the victim
refused to come to court and would not be present to finish her
testimony.5 Defense counsel again voiced his opposition to a
mistrial without prejudice when the Commonwealth requested a
continuance. At no time did counsel suggest the defendant was
5 The Commonwealth provided a rationale for the victim's absence, reporting the victim "[was] very scared about testifying because . . . while she was testifying[,] she felt that the defendant was snickering and laughing at what she said." Defense counsel disputed this account, stating "I was standing right next to [the defendant]. Your Honor is in plain view of him."
5 amenable to a mistrial without prejudice. Where the defendant
specifically requested the judge declare a mistrial with
prejudice, and objected to a mistrial without prejudice, we
conclude that he did not consent to retrial. See Edwards, 491
Mass. at 13 ("[A] defendant may object [to a mistrial] by
expressing a preference against mistrial prior to the judge's
ruling"); Commonwealth v. Cassidy, 410 Mass. 174, 177 n.2 (1991)
(defendant did not consent to mistrial where "defendant did not
formally object" but "did . . . ask the judge to try to avoid a
mistrial").
2. Manifest necessity. Because we conclude that the
defendant did not consent to retrial, "the Commonwealth bears
the 'heavy' burden of proving that a mistrial rested on manifest
necessity." Commonwealth v. Nicoll, 452 Mass. 816, 818 (2008),
quoting Arizona v. Washington, 434 U.S. 497, 505 (1978). A
judge's determination that manifest necessity warrants a
mistrial is a "fact-intensive" inquiry. Bryan, 476 Mass. at
357. "We review a judge's determination that there was
'manifest necessity' for a mistrial under an abuse of discretion
standard." Cruz v. Commonwealth, 461 Mass. 664, 669 (2012).6
See also Commonwealth v. Steward, 396 Mass. 76, 79 (1985)
We also review for an abuse of discretion a decision to 6
deny a motion for reconsideration. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 313 (2009).
6 ("discretion of a trial judge where double jeopardy is concerned
is more restricted than the discretion commonly granted to trial
judges for the more routine matters"). In determining whether a
judge abused their discretion, "[t]wo principles guide our
review: (1) counsel must [have been] given full opportunity to
be heard and (2) the trial judge must [have given] careful
consideration to alternatives to a mistrial" (quotation and
citation omitted). Commonwealth v. Taylor, 486 Mass. 469, 484-
485 (2020).
Here, by giving each counsel ample time to argue the
necessity of a mistrial or pose alternative options, the judge
provided both parties the opportunity to be heard. Cf. Nicoll,
452 Mass. at 818 (opportunity to be heard satisfied by trial
judge "asking the attorneys for their opinions and openly
listening to their views and advice"). Contrast Picard v.
Commonwealth, 400 Mass. 115, 118-119 (1987) (judge provided
counsel "[n]o opportunity . . . to argue the propriety of the
question or of the necessity of a mistrial").
However, as to the second requirement, this record does not
allow us to examine whether the judge properly determined
manifest necessity supported her declaration of mistrial. See
Picard, 400 Mass. at 118, quoting Barton v. Commonwealth, 385
Mass. 517, 519 (1982) (we defer to trial judge's exercise of
7 discretion in ruling that manifest necessity exists for mistrial
"only if it is clear from the record that the judge has given
careful consideration to the available alternatives and to the
defendant's interest in having the trial concluded in a single
proceeding"). Neither the judge nor the parties ever mentioned
manifest necessity, and in the judge's written findings, she
found only that there was no prosecutorial misconduct that
warranted a mistrial with prejudice. Because the record is not
adequately clear as to the nature of and basis for the judge's
decision, we cannot without further factual findings assess
whether the judge acted within her discretion by engaging in
careful consideration of the alternatives to a mistrial. See
Lovett v. Commonwealth, 393 Mass. 444, 447 (1984) (particular
facts of each case dictate determination of manifest necessity).
More specifically, we cannot discern from the trial
transcript the judge's reason for rejecting a one-day
continuance as a possible alternative. One potential reason
appears to be that the judge and counsel agreed that multiple
jurors may have had scheduling conflicts that impacted their
availability for the following day.7 However, the basis for the
conclusion that the trial could not continue into Friday is
7 It is also unclear whether the victim would even have been available, as the Commonwealth stated she "could possibly do Friday."
8 unclear without further elaboration from the judge.8 We note
that the judge did not inquire with the seated jurors as to
their availability should the trial extend past the two-day
mark, or discuss the use of the two alternate jurors in the
event of juror unavailability. If the judge based her decision
to declare a mistrial without prejudice in part or entirely on
juror unavailability, she should state as much, as well as her
basis for so concluding.
In addition, we see no basis in the record to support the
Commonwealth's statement, uncorrected by either the judge or
defense counsel, that "I do understand that we could not
continue this [trial] into Friday given everyone's schedule."9
Our uncertainty as to the basis for this statement does not mean
that we have reason to doubt the veracity of the statement;
merely that it is unclear from the record why "everyone's
schedule" would not allow for that one-day continuance.10
8 For instance, jurors no. 2 and 5 said it would be difficult but possible to serve on the jury until Thursday; the judge did not ask about their availabilities on Friday.
9 Because the defendant did not contest this statement, we take his silence as assent.
10We note that the judge encouraged the parties to discuss potential ways to resolve the issue of the witness not appearing. It may be that the prosecutor was referring to something that was said off the record.
9 Furthermore, although the judge and defense counsel
discussed the defendant's expert witness's availability, we are
unable to ascertain from their discussion whether this witness
would have been available if he had been called "out of turn" or
had the trial had been continued. While defense counsel stated
that the expert witness had a conflict at 1 P.M. on Thursday and
was "lined up all day tomorrow [Friday]," there was no
discussion on the record whether time would have permitted him
to conclude his testimony on Thursday morning or if he was
available to testify on Friday.11 If the judge inferred that the
defendant's expert witness was unavailable to testify on Friday,
and if that factored in her decision to declare a mistrial, she
should so state in her findings.12
The lack of clarity on the basis for the judge's decision
to declare a mistrial is furthered by her written decision on
the Commonwealth's motion to retry the defendant, where she
affirmed the mistrial without prejudice solely on the basis that
there was "no prosecutorial misconduct." Although we conclude
that the judge did not abuse her discretion in finding there was
11It is unclear to us if being "lined up all day" meant the expert witness, a surgeon, was available for trial, or in the alternative if he had scheduled surgery for that date and thus would be unavailable for trial unless held by the court.
12We acknowledge that defense counsel represented that the expert witness was critical to his defense.
10 no prosecutorial misconduct under Oregon v. Kennedy, 456 U.S.
667, 676 (1982), further factual findings are necessary as to
whether she declared a mistrial because of the witnesses'
intentional failures to appear, or instead, if her reasons for
declaring a mistrial included her implicit finding of manifest
necessity.13 See, e.g., Edwards, 491 Mass. at 17-18; Bryan, 476
Mass. at 359.
"[D]ismissal with prejudice is a 'remedy of last resort,'"
(citation omitted), Edwards, 491 Mass. at 9, and would be
warranted here only if the judge did not carefully consider
possible alternatives to declaring a mistrial. See Nicoll, 452
Mass. at 822. However, due to the fact-dependent nature of the
manifest necessity inquiry, see Bryan, 476 Mass. at 357, we
cannot determine whether the judge abused her discretion on this
incomplete record, and thus, cannot conclude this remedy is
warranted at this juncture. Cf. Commonwealth v. Jones-Pannell,
472 Mass. 429, 437 (2015) ("where the facts as found are
susceptible of more than one interpretation, and there is
additional evidence in the record, neither implicitly credited
nor discredited by the judge, remand may be appropriate"
[quotation omitted]). Accordingly, remand is prudent, to allow
13We agree with the trial judge as to her finding that there was no prosecutorial misconduct. The record does not support any assignment of misconduct to the trial prosecutor.
11 the judge to make findings regarding her assessment of manifest
necessity and to clarify the facts supporting her elimination of
a continuance as a possible alternative and other factors she
considered in declaring a mistrial. See Commonwealth v.
Tremblay, 480 Mass. 645, 660-661 (2018).
Conclusion. Accordingly, the order allowing the
Commonwealth's motion for a new trial date and denying the
defendant's motion for reconsideration is vacated. The case is
remanded for the judge to make express findings (1) whether she
found manifest necessity before declaring a mistrial; and if so,
(2) the factual basis for such a finding. If the judge
concludes that she did not find that manifest necessity
supported her order of mistrial, the case against the defendant
is ordered dismissed with prejudice, as double jeopardy
principles bar a retrial. See Edwards, 491 Mass. at 18, citing
Commonwealth v. Gonzalez, 437 Mass. 276, 283 (2002), cert.
denied, 538 U.S. 962 (2003) ("Double jeopardy principles
12 will often foreclose any remedy for, or shield from review, a
trial judge's errors or misconduct").
So ordered.
By the Court (Rubin, D'Angelo & Smyth, JJ.14),
Clerk
Entered: June 13, 2025.
14 The panelists are listed in order of seniority.