462 Mass. 1 Appellant Ray Brief - Mass Cases

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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.