462 Mass. 1 Appellant Ray Brief - Mass Cases

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-3- 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). -4- 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 <strong>Mass</strong>. 1 (1851), and Commonwealth v. Rodriguez, 364 <strong>Mass</strong>. 87 (1973).
Page 1 and 2: COMMONWEALTH OF MASSACHUSETTS SUPRE
Page 3 and 4: -ii- TABLE OF AUTHORITIES Cases A J
Page 5: -iv- Statutes G.L. c.211, §3. . .
Page 11 and 12: -6- See Commonwealth v. Haley, 413
Page 13: -8- "high degree" of necessity requ
Page 19 and 20: -14- single prosecutionn required t

462 Mass. 1 Appellant Ray Brief - Mass Cases

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