462 Mass. 1 Appellant Ray Brief - Mass Cases

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SUFFOLK COUNTY NO. SJC-11156
MICHAEL RAY
v.
COMMONWEALTH
BRIEF AND RECORD APPENDIX FOR THE DEFENDANT
ON RESERVATION AND REPORT BY THE SINGLE JUSTICE
March, 2012.
ANNE ROUSSEVE
BBO #666395
ATTORNEY FOR DEFENDANT
COMMITTEE FOR PUBLIC COUNSEL SERVICES
Public Defender Division
One Congress Street, Suite 102
Boston, Massachusetts 02114
(617) 209-5500
arousseve@publiccounsel.net

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................. ii
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND FACTS .................. 1
ARGUMENT
THE INDICTMENTS MUST BE DISMISSED
ON DOUBLE JEOPARDY GROUNDS BECAUSE
THE JUDGE DECLARED THE JURY TO BE
DEADLOCKED AND TERMINATED THE TRIAL
OVER THE DEFENDANT'S OBJECTION WHEN
THERE WAS NO "MANIFEST NECESSITY"
TO DO SO .......... -. . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. There was no "manifest necessity"
for the mistrial because the
judge failed to ascertain if
there was a reasonable probability
of a unanimous verdict prior to
declaring a mistrial ................... 5
C. The judge's decision to declare
a mistrial is not entitled to
deference.on appeal because the
judge did not give careful consideration
to the available alternatives
and the defendant's
interest in retaining the chosen
.i.Y.£y. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION ....................................... 14
ADDENDUM ......................................... 16
CERTIFICATE OF COMPLIANCE ........................ 18
RECORD APPENDIX .................................. 19

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TABLE OF AUTHORITIES
Cases
A Juvenile v. Commonwealth,
3 9 2 Mas s . 5 2 ( 1 9 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 , 1 0
Arizona v. Washington,
434 u.s. 497 (1978) ............................ 8, 14
Barton v. Commonwealth,
3 8 5 Mass . 517 ( 19 8 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14
Benton v. Maryland,
395 u.s. 784 (1969) ............................ 5
Collins v. Commonwealth,
412 Mass . 3 4 9 ( 19 9 2) ........................... 14
Commonwealth v. Andrews,
4 0 3 Mas s . 4 4 1 ( 1 9 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Commonwealth v. Haley,
4 13 Mas s . 7 7 0 ( 1 9 9 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Commonwealth v. Horrigan,
41 Mass. App. Ct. 337 (1996) ................... 14
Commonwealth v. Murray,
22 Mass. App. Ct. 984 (1986) ................... 13
Commonwealth v. Phetsaya,
40 Mass. App. Ct. 293 (1996) ................... 14
Commonwealth v. Rodriguez,
3 6 4 Mas s . 8 7 ( 1 9 7 3 ) . . . . . . . . . . . . . . . . . . • . . . . . . . . . 1 , 4
Commonwealth v. Steward,
3 9 6 Mass . 7 6 ( 19 8 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 10
14
Commonwealth v. Tuey,
62 Mass. 1 (1851) .............................. 1, 4

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Crist v. Bretz,
437 u.s. 28 (1978) ............................. 11
Cruz v. Commonwealth,
2012 Mass. LEXIS 136 *13-14 (Mar. 15, 2012) .... 9
Cuoto v. Commonwealth,
18 Mass. App. Ct. 913 (1984) ................... 14
Green v. United States,
355 u.s. 184 (1957) ............................ 8
Illinois v. Somerville,
410 u.s. 458 (1973) ............................ 11
Jones v. Commonwealth,
3 7 9 Mass . 6 0 7 ( 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 14
Oregon v. Kennedy,
456 u.s. 667 (1982) ............................ 5, 11
Thames v. Commonwealth,
3 6 5 Mass . 4 7 7 ( 19 7 4 ) . . .. . . .. . . . . .. . . . . . .. . . . . .. 5 , 7 , 1 0
United States v. Barbinoi,
62 F.2d (1st Cir. 1995) ........................ 7, 10
United States v. Jorn,
400 u.s. 470 (1971) ............................ 11, 12, 13
United States v. Perez,
22 u.s. 579 (1824) ............................. 8
Wade v. Hunter,
336 u.s. 684 (1949) ............................ 12
United States Constitution,
Constitutional Provisions
Fifth Amendment ............................... , 4, 15, 16
Fourteenth Amendment ........................... 4, 15, 16

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Statutes
G.L. c.211, §3. . . . . . . . . . . . . . . . . . . .. . . . . . . . . 3
G.L. c.263, §7 (2011 ed.) . . . . . . . . . . . . . . . . . . 5, 16
G.L. c.263, §8 (2011 ed.) . . . . . . . . . . . . . . . . . . . . . 5, 17
G.L. c.263, §SA ( 2011 ed.) . . . . . . . . . . . . . . . . . 5, 17
G.L. c.272, §7. . . . . . . . . . . . . . . . . . . . . . . . . . 1

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have not been able to come to an unanimous decision,
even after very careful consideration of all of the
evidence presented. We are in fact hopelessly dead­
locked" (R. 17).
After reviewing the third note, the judge indicated
that he was inclined to declare a mistrial without
giving the jury any further instructions (R. 17). Both
the prosecutor and defense counsel requested that the
judge give a Tuey-Rodriguez instruction (R. 17). The
judge declined to further instruct the jury and instead
declared a mistrial over the defendant's objection (R.
17) .
On February 15, 2012, without a hearing, the judge
denied the defendant's motion to dismiss the indict­
ments on double jeopardy grounds (R. 18). Without a
hearing the judge also denied the defendant's motion to
stay the proceedings (R. 18).
On February 16, 2012, the defendant petitioned the
single justice for relief pursuant to G.L. c.211, §3.
After the Commonwealth filed an opposition to the
petition, the single justice, on February 17, 2012,
reserved and reported the matter without decision for
determination by the Supreme Judicial Court for the

Commonwealth (R. 33-34).
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ARGUMENT
THE INDICTMENTS MUST BE DISMISSED ON DOUBLE JEOPARDY
GROUNDS BECAUSE THE JUDGE DECLARED THE JURY TO BE DEAD­
LOCKED AND TERMINATED THE TRIAL OVER THE DEFENDANT'S
OBJECTION WHEN THERE WAS NO "MANIFEST NECESSITY" TO DO
so.
A. Introduction
The defendant's trial was terminated when the judge
declared a mistrial, over the defendant's objection,
when the jury first indicated that it was deadlocked.
Under these circumstances, there was no "manifest
necessity" to declare a mistrial because the judge had
other alternatives. Specifically, the judge had the
alternative of giving the Tuey-Rodriguez instruction!/
as both counsel requested. Under these circumstances,
denial of the defendant's Motion to Dismiss was errone-
ous. The retrial of the defendant would constitute
double jeopardy in violation of the defendant's right
to not "be twice put in jeopardy of life or limb" under
the Fifth and Fourteenth Amendments to the United
States Constitution, and the statutory and common law
! 1 see Commonwealth v. Tuey, 62 Mass. 1 (1851), and
Commonwealth v. Rodriguez, 364 Mass. 87 (1973).

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of the Commonwealth. See Benton v. Maryland, 395 U.S.
784 (1969). Thames v. Commonwealth, 365 Mass. 477
(1974). General Laws c.263 §§7, 8, 8A (2011 ed.)
B. There was no "manifest necessity" for
the mistrial because the judge failed to
ascertain if there was a reasonable
probability of a unanimous verdict prior
to declaring a mistrial.
"When a mistrial is declared over the defendant's
objection, the general rule is that retrial is barred.
An exception to the general rule exists for cases in
which the mistrial was justified by manifest necessity."
Commonwealth v. Andrews, 403 Mass. 441, 447 (1988),
quoting Oregon v. Kennedy, 456 U.S. 667, 683 (1982).
There was no "manifest necessity" to declare a mistrial
because the judge failed to explore other alternatives.
See Commonwealth v. Steward, 396 Mass. 76, 79 (1985)
Specifically, the judge declined to give the Tuey-
Rodriguez instruction, as both counsel requested. The
third note from the jury was the first indication that
the jury was experiencing any difficulty arriving at a
verdict. The Tuey-Rodriguez instruction is designed to
assist the jury in this particular situation and the
judge should have given the jury the benefit of this
instruction prior to declaring the jury deadlocked.

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See Commonwealth v. Haley, 413 Mass. 770, 779 (1992)
("The purpose of the charge is to instruct the jury
concerning their decision making process in the event
it appears the jury may be deadlocked").
Although the jury had previously submitted two
notes, these notes contained questions about the
evidence and the law applicable to the case. Despite
the judge's finding that "[i]n light of all of the
communications from the jury and all of the other
circumstances ... a Tuey-Rodriguez charge would entail
a serious risk of jury coercion," neither of the two
previous notes indicated that the jury was experiencing
any difficulty with the deliberation process (R. 19).
The judge's concern for coercion is simply not
supported by the record.
Not only did the judge not provide the jury with
the Tuey-Rodriguez instruction, the judge also failed
to take any other measures to ensure that the jury was
truly deadlocked before aborting the trial over the
defendant's objection. The judge did not conduct any
inquiry with the jury to determine whether any further
instructions or deliberations would be likely to
resolve the deadlock. Contrast United States v.

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Barbioni, 62 F.3d 5, 7 (1st Cir. 1995) (manifest
necessity for a mistrial where the judge received two
notes from the jury indicating the jury was unable to
reach a unanimous verdict and the judge polled the
jurors individually to ensure that each juror believed
there was a deadlock that could not be resolved by any
further instructions or deliberations); A Juvenile v.
Commonwealth, 392 Mass. 52, 55 (1984) (manifest
necessity for a mistrial where judge received a note
from the foreperson indicating the jury was unable to
agree and the jury affirmed that they were deadlocked
during an inquiry in open court)j Thames, supra, 365
Mass. at 480 (manifest necessity for a mistrial where
judge received two messages from the jury indicating
that they were unable to agree and judge learned that
the jury had a disposition of eleven to one in favor of
conviction during an inquiry of the foreperson in open
court) .
Because the judge did not take any measures to
assist the jury in coming to a unanimous verdict or to
ensure that the jury was truly deadlocked before
declaring a mistrial, the Commonwealth cannot sustain
its heavy burden of demonstrating that there was a

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"high degree" of necessity requiring a mistrial.
Arizona v. Washington, 434 U.S. 497, 506 (1978).
C. The judge's decision to declare a mistrial
is not entitled to deference on
appeal because the judge did not give
careful consideration to the available
alternatives and the defendant's
interest in retaining the chosen jury.
The rationale underlying the prohibition against
double jeopardy
is that the State with all its resources and
power should not be allowed to make repeated
attempts to convict an individual for an
alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling
him to _live in a continuing state of
anxiety and insecurity, as well as enhancing
the possibility that even though innocent he
may be found guilty.
Green v. United States, 355 U.S. 184, 187-188 (1957).
Due regard for the defendant's fundamental constitu-
tiona! right to be free from double jeopardy requires
that a trial judge's power to declare a mistrial be
"used with the greatest caution, under urgent circum-
stances, and for very plain and obvious causes."
United States v. Perez, 22 U.S. 579, 580 (1824). "The
discretion of a trial judge where double jeopardy is
concerned is more restricted than the discretion
commonly granted to trial-judges for ... more routine

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the case away from the jury," Jorn, supra, 400 U.S. at
485, and his "right to have a particular tribunal
decide [his] fate once and for all." Jones, supra, 379
Mass. at 619.
"[W]here the judge, acting without the defendant's
consent, aborts the proceeding, the defendant has been
deprived of his 'valued right to have his trial com-
pleted by a particular tribunal.'" Jorn, 400 U.S. at
484, quoting Wade v .. Hunter, 336 U.S. 684, 689 (1949) .Y
"The judge must always temper the decision whether or
not to abort the trial by considering the importance to
the defendant-of being able, once and for all, to
conclude his conf!ontation with society through the
verdict of a tribunal. he might believe to be favorably
disposed to his fate." Jorn, supra, 400 U.S. at 486.
The defendant had reason to believe that this jury was
"favorably disposed to his fate, " id., because the
questions from the jury focused on gaps in the Common-
wealth's evidence and the failure of the police to
§/"Although Mr. Justice Harlan's opinion in Jorn was a
plurality opinion of foui Justices, we rely on it as
one_ of the principal cases setting the parameters of
the protection afforced by the double jeopardy clause."
Jones v. Commonwealth, 379 Mass. 607, 616 n.l8 (1980).

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single prosecutionn required the judge to seriously
consider alternatives to declaring a mistrial, including
counsels' request for a Tuey-Rodriguez instruction.
Jones, supra, 379 Mass. at 617. Because the judge did
not explore other alternatives to declaring a mistrial,
the Commonwealth cannot sustain its heavy burden of
demonstrating that there was a "high degreen of
necessity requiring a mistrial. Arizona v. Washington,
434 U.S. 497, 506 (1978). See Collins v. Commonwealth,
412 Mass. 349, 352 (1992); Commonwealth v. Steward, 396
Mass 76, 79-80 (1985); Barton v. Commonwealth, 385
Mass. 517, 518-519 (1982); Jones v. Commonwealth, 379
Mass. 607, 615-618 (1980); Commonwealth v. Horrigan, 41
Mass. App. 337, 341 (1996); Commonwealth v. Phetsaya,
40 Mass. App. Ct. 293, 298-300 (1996); Cuoto v. Common­
wealth, 18 Mass. App. Ct. 913, 913-914 (19841 (all
barring retrial on double jeopardy grounds because the
trial judge declared a mistrial without carefully
considering less drastic alternatives).
CONCLUSION
For the above stated reasons, the record does not
demonstrate a "manifest necessityn for the mistrial.

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Further prosecution would therefore violate the defen-
dant's right not to be twice put in jeopardy of life or
limb under the Fifth and Fourteenth Amendments to the
United States Constitution and the common-law
principles of the Commonwealth. Accordingly, this
Court should order the dismissal of the indictments.
March, 2012.
Respectfully submitted,
MICHAEL RAY
By his Attorney,
Anne Rousseve
BBO #666395
COMMITTEE FOR PUBLIC COUNSEL SERVICES
Public Defender Division
One Congress Street, Suite 102
Boston, Massachusetts 02114
(617) 209-5500
arousseve@publiccounsel.net