"It would be a reproach to the administration of justice if a defendant[,] through his counsel, could pollute the atmosphere of a trial and then turn this to his own advantage on appeal" [citations omitted]
How later courts described this case
- "It would be a reproach to the administration of justice if a defendant[,] through his counsel, could pollute the atmosphere of a trial and then turn this to his own advantage on appeal" [citations omitted]
Written by the judges who cited it.
The opinion
NOTICE: All slip opinions and orders are subject to formal
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error or other formal error, please notify the Reporter of
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SJC-12140
COMMONWEALTH vs. ATUNBI BRYAN.
Suffolk. November 7, 2016. - January 20, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Practice, Criminal, Mistrial. Supreme Judicial Court,
Superintendence of inferior courts.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 26, 2016.
The case was heard by Duffly, J.
Nicholas Brandt, Assistant District Attorney (Gregory D.
Henning, Assistant District Attorney, also present) for the
Commonwealth.
Paul J. Davenport for the defendant.
GAZIANO, J. The defendant was one of three occupants of a
van that was stopped by a Boston police officer for a traffic
violation (driving without headlights) in the early morning
hours of April 12, 2014. Police officers issued an exit order,
as a safety precaution, based on certain facts that unfolded
2
during the motor vehicle stop. When the defendant, the rear
seat passenger, got up to get out of the van, a police officer
observed a handgun underneath his right thigh.
At trial, the judge issued an explicit order precluding
defense counsel from introducing evidence that the front seat
passenger in the van previously had been convicted of unlawful
possession of a firearm.1 Defense counsel elicited this
testimony anyway. The judge declared a mistrial, over the
defendant's repeated objection.
The defendant subsequently moved to dismiss the charges on
double jeopardy grounds, contending that there had been no
manifest necessity to declare a mistrial, and that the judge
erred in not pursuing a less severe option to cure the
introduction of the precluded testimony, such as a curative
instruction. A different Superior Court judge denied the
motion, and the defendant filed a petition pursuant to G. L.
c. 211, § 3, in the county court. The single justice determined
that the trial judge had erred in concluding that there was a
manifest necessity to declare a mistrial. The Commonwealth
appealed to this court from the single justice's allowance of
the defendant's petition.
Because a determination that a mistrial was manifestly
1
The front seat passenger, Derek Brown, was a codefendant
in this case; he pleaded guilty to drug charges after the
defendant's trial.
3
necessary is committed to the sound discretion of the trial
judge, a reviewing court examines such a decision only for abuse
of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). "We do not disturb the judge's ruling 'simply
because [we] might have reached a different result; the standard
of review is not substituted judgment.'" Cruz v. Commonwealth,
461 Mass. 664, 670 (2012), quoting Bucchiere v. New England Tel.
& Tel. Co., 396 Mass. 630, 641 (1986). We conclude that there
was no abuse of discretion in the judge's decision to declare a
mistrial, on the ground of manifest necessity, after defense
counsel intentionally violated her order that the evidence
concerning the other passenger's prior conviction was excluded
for all purposes, and that the single justice applied a
substituted judgment standard in deciding otherwise.
Accordingly, we remand the matter to the county court for entry
of an order denying the defendant's G. L. c. 211, § 3 petition.
1. Prior proceedings. In order to understand the
circumstances surrounding the judge's order prohibiting inquiry
into the other passenger's criminal history, we first must
address testimony presented at the hearing on the defendant's
motion to suppress evidence seized after the stop, and the
Commonwealth's motion in limine to exclude such testimony.
a. Motion to suppress. In May, 2015, a Superior Court
judge who was not the trial judge (motion judge) conducted an
4
evidentiary hearing on the defendants' motions to suppress.
Boston police Officer Sean Daniely and two other officers
testified at that hearing. Daniely testified that at 1:30 A.M.
on April 12, 2014, he stopped a van on Blue Hill Avenue in the
Mattapan section of Boston for being operated without its
headlights illuminated. There were three occupants in the van:
Sedeke Williams, the driver; Derek Brown, the front seat
passenger; and the defendant, in the rear bench seat behind the
driver. The defendant and Brown were not wearing seat belts.
Daniely obtained identification from the three occupants in
order to write traffic citations. He entered their names into
his police cruiser's onboard computer (referred to as a mobile
data terminal or MDT) and learned that Brown, whom he had
recognized as someone he had seen previously, had a prior
conviction for a firearms offense. The defendant and Williams
did not have criminal records.
While Daniely was at his cruiser, two night club bouncers
walked across Blue Hill Avenue and approached Boston police
Officer Gregory Vickers, who had arrived to assist.2 The
bouncers told Vickers that they worked at a nearby night club,
and had just ejected the occupants of the van from the club.
They said that "someone" outside the club reported that one of
2
The location of the stop was very close to a Boston police
3
station, almost directly across the street from it. The
prosecutor did not object to these questions.
5
the passengers in the van was in possession of a firearm.
Based on the information about Brown's prior conviction,
the bouncers' report, the driver's "nervous" appearance, and a
suspicion that the driver might have been operating under the
influence of alcohol, Daniely ordered the defendant, Brown, and
Williams out of the van. When the defendant got up to get out
of the van, Vickers observed a firearm underneath his right
thigh.
The motion judge found that the exit order had been
justified for reasons of officer safety, and denied the
defendant's motion to suppress.
b. Motion in limine. The Commonwealth filed a motion in
limine to preclude inquiry at trial into Brown's criminal
history. The prosecutor maintained that inquiry into Brown's
conviction of unlawful possession of a firearm would be
irrelevant, prejudicial, and confusing to the jury. The parties
addressed the issue of Brown's criminal history at a pretrial
conference on the Friday before the scheduled Monday trial. On
the defendant's objection that exclusion of the evidence of
Brown's prior conviction would further confuse the jury because
they would assume that the information Daniely learned from his
MDT concerned the defendant, and not another of the vehicle's
occupants, the trial judge asked the parties if they would be
able to reach an agreement as to the exclusion of this evidence.
6
The prosecutor suggested that Daniely be permitted to testify
that "based upon certain information . . . he learned from his
review of the computer system and conversations he had with
these additional people that showed up [the night club
bouncers] . . . [h]e made a decision [to issue an exit order]."
Defense counsel agreed to this suggestion. The judge remarked,
"All right. So it sounds like there is no dispute about the
Commonwealth's motion as it's written, . . . is that fair?"
Defense counsel replied, "That's fair, Your Honor."
c. Proceedings at trial. Trial began the following
Monday. In his opening statement, the prosecutor told the jury
that they would hear evidence that "the gun was underneath [the
defendant's] butt, and his fingerprint was on the magazine
stuffed up inside that gun, and those two factors are going to
make it abundantly clear at the end of this case that [the
defendant] is guilty of these charges." In his opening, defense
counsel disputed the Commonwealth's simplified version of the
facts. He stated, "Don't forget to use your common sense about
how the world works, about what's really going on behind the
scenes."
Daniely was the first witness. On direct examination, he
testified that he obtained identification from all three
occupants of the van in order to issue traffic citations. He
utilized his police cruiser's onboard computer to "research some
7
information on the three occupants in the car."
On cross-examination, defense counsel asked Daniely if the
information obtained from the computer search, "without getting
into the substance of what [he] discovered," caused him to focus
on "one of the other occupants in the vehicle than my client."
Daniely replied that it did not. In response, defense counsel
asked, "You did not have a reason to suspect one of the
occupants of the van over the others?" The judge sustained the
prosecutor's objection to this question.
Defense counsel pursued the line of questioning, and
Daniely testified that his computer search revealed that Brown,
as opposed to the defendant, had a criminal record.3 Daniely,
however, maintained that the criminal history check did not
cause him to suspect Brown more than the other two occupants of
any wrongdoing. Defense counsel pressed the issue and asked
about the nature of Brown's criminal conviction. The judge
sustained the prosecutor's objection.
The judge heard further argument from both lawyers at
sidebar. Defense counsel represented that he was attempting to
elicit from the arresting officer the reasons that the officer
ordered all the occupants out of the van. The judge agreed to
allow limited additional evidence on this topic. She ruled that
defense counsel would be permitted to ask, without revealing the
3
The prosecutor did not object to these questions.
8
nature of the conviction, whether there was "something on the
computer that made [the officer] worry about the passenger."
Defense counsel continued to argue that Brown's firearm
conviction was admissible. The judge did not agree. She
instructed, "It [the firearm conviction] doesn't come in at all
is my ruling . . . . Okay? Let's be clear about that." The
judge noted the defendant's objection, and told defense counsel
to continue with cross-examination without eliciting this
inadmissible evidence.
Defense counsel returned to the conduct of his cross-
examination and immediately asked Daniely:
Q.: "So, when you reviewed the information from the MDT,
it didn't come up with a criminal conviction for one
of the occupants of the van?"
A.: "It did."
Q.: "And that was for Derek Brown in . . . the front
passenger seat?"
A.: "Yes, sir."
Q.: "And that was possession of a firearm?"
A.: "Yes, sir."
The judge excused the jury for the day to address defense
counsel's violation of her evidentiary ruling. The prosecutor
moved for a mistrial. He argued that the "toothpaste is out of
the tube" and that the jury would be unable to disregard
information that the judge specifically had precluded. The
9
judge initially denied the motion and raised the possibility of
a curative instruction, asking the Commonwealth to "tell me
about this detail that you say can't be cured," and "Why can't I
tell the jury that they are to disregard [the statement]?"
After a discussion of the prejudicial impact of Daniely's
testimony that Brown had a prior firearm conviction, the
prosecutor maintained that the evidence was too prejudicial to
cure.
The judge then turned to defense counsel and asked him to
respond to the Commonwealth's motion for a mistrial. She said,
"I'll hear you, [counsel]. What do you have to say for
yourself?" Defense counsel did not address the Commonwealth's
motion for a mistrial, and stated instead, "that information
should stand in evidence." When the judge again asked defense
counsel "what do you have to say for yourself for violating a
court order?," he continued to argue that he should be allowed
to introduce evidence of Brown's firearm conviction to impeach
Daniely, whose testimony at trial differed in some respects from
his testimony at a prior hearing. The judge asked defense
counsel, two more times, to explain why he disregarded her
order, while defense counsel continued to argue that the judge's
evidentiary ruling was incorrect, and that the evidence should
be admissible for impeachment purposes. Finally, the judge
declared a mistrial, observing that defense counsel had "wasted
10
everyone's time."
2. 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.
See Benton v. Maryland, 395 U.S. 784, 793-796 (1969);
Commonwealth v. Cassidy, 410 Mass. 174, 176 (1991); G. L.
c. 263, §§ 7, 8, 8A. As a consequence, once jeopardy has
attached, a judge may declare a mistrial over the defendant's
objection only if there is a manifest necessity to do so.
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
Commonwealth v. Nicoll, 452 Mass. 816, 818 (2008). "[I]n view
of the importance of the right, and the fact that it is
frustrated by any mistrial, the prosecutor must shoulder the
burden of justifying the mistrial if he is to avoid the double
jeopardy bar" (citation omitted). Commonwealth v. Steward, 396
Mass. 76, 79 (1985). See Nicoll, supra (due to importance of
double jeopardy protection, Commonwealth bears "heavy" burden).
A judge's determination that there is a "manifest
necessity" warranting the declaration of a mistrial is reviewed
under an abuse of discretion standard. Cruz, 461 Mass. at 669.
There is no abuse of discretion "simply because [we] might have
reached a different result." Id. at 670, quoting Bucchiere, 396
11
Mass. at 641. See L.L., 470 Mass. at 185 n.27 (abuse of
discretion where "judge made 'a clear error of judgment in
weighing' the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable alternatives"
[citation omitted]).
Because of the fact-intensive nature of this inquiry, we
recognized, in Steward, 396 Mass. at 79, that "[i]t is
impossible to create a crisp formula for determining when
'manifest necessity' arises" justifying a mistrial. See Lovett
v. Commonwealth, 393 Mass. 444, 447 (1984) (particular facts of
each case dictate determination of manifest necessity). Under
our case law, however, "[t]wo principles emerge for guidance."
Steward, supra. A judge considering whether to declare a
mistrial over a defendant's objection is required to (1) provide
counsel with a full opportunity to be heard, and (2) give
careful consideration to possible alternatives to a mistrial.
Nicoll, 452 Mass. at 818 (under second requirement, judge
identifies alternative remedy to mistrial and, if one or more
exists, carefully considers each one).
Applying these principles to this case, we conclude that
the judge's declaration of a mistrial to remedy defense
counsel's violation of her order was not an abuse of discretion.
As to the first requirement, the defendant argues that the judge
declared a mistrial without allowing him an opportunity to
12
respond. He maintains that the judge interrupted him, abruptly
cut him off, and then immediately declared a mistrial. He
contrasts his treatment with the treatment that the judge
afforded the prosecutor, who was "given considerable time to
make [his] argument." We do not agree with the defendant's
characterization of the proceedings.
At the beginning of the hearing, the prosecutor represented
that all of the attorneys had been in the hallway discussing
options to a mistrial. The judge then discussed the necessity
of a mistrial with the prosecutor in some detail. At the end of
that discussion, she turned to defense counsel and said, "I'll
hear you . . . . What do you have to say for yourself?"
Counsel did not then directly address the Commonwealth's motion
for a mistrial but, rather, argued that the judge's evidentiary
ruling was erroneous. He did not respond to the judge's
repeated questions to explain himself and his reasons for
violating the court's order other than to continue to argue that
the judge's evidentiary ruling was incorrect. When the judge
reminded defense counsel of the recently concluded sidebar
conference where she had ruled that Brown's prior conviction was
inadmissible for all purposes, counsel responded that the
testimony she had ordered excluded was admissible, "regardless
of motions in limine or court rulings," "according to the rules
of evidence." Immediately thereafter, the judge declared a
13
mistrial.4
We conclude that the judge provided defense counsel with an
opportunity to be heard. Counsel was unable, or unwilling, to
put aside his disagreement with the judge's evidentiary ruling
and address the motion for a mistrial. As a result, he did not
avail himself of the opportunity to be heard that was provided
to him. In these circumstances, the judge was not required to
continue her futile efforts to convince counsel to address the
motion. Compare Steward, 396 Mass. at 79 (judge declared
mistrial and, "almost as an afterthought, unenthusiastically"
asked whether defense counsel objected).
We turn to the second requirement, whether the judge fully
explored possible alternatives before declaring a mistrial. The
single justice focused on the existence of these alternatives,
and the importance of the defendant's interest in proceeding
with the trial, in deciding that there was no manifest necessity
for a mistrial. We conclude, however, that in weighing these
alternatives, the trial judge did "balance" the "two competing
policy considerations" at issue in making a determination of
manifest necessity: the defendant's "valued right to have his
4
The defendant asserts that his repeated responses to the
judge's inquiry regarding a mistrial were justified by his
obligation to perfect his appellate rights. Defense counsel
objected to the exclusion of this evidence at sidebar and stated
the grounds for its admissibility. See Mass. G. Evid. § 103
(2016). The appellate record had been preserved, and there was
no need for further argument to do so.
14
trial completed by a particular tribunal" and the "interest of
the public in 'fair trials designed to end in just judgments.'"
Cruz, 461 Mass. at 670-671, quoting Arizona v. Washington, 432
U.S. 479, 503 & n.11 (1978), and Oregon v. Kennedy, 456 U.S.
667, 672 (1982). As stated, she initially denied the
Commonwealth's motion for a mistrial, and sua sponte raised the
possibility of a curative instruction. She noted that a
mistrial bypasses "another whole procedure here which is a
limiting and restrictive instruction," and asked the prosecutor,
"Why can't I tell the jury that they are to disregard that?"
The judge also weighed the prejudicial impact of Daniely's
testimony that Brown had been convicted previously of a firearms
offense. She considered a number of factors related to
potential prejudice. First, Brown's prior firearms conviction
did not necessarily lead to the inescapable conclusion that
Brown possessed the firearm discovered in the van. Second, a
police officer was expected to testify that he observed the
firearm underneath the defendant on the van's rear bench seat.
The judge noted, "I don't see how it becomes the other guy's gun
when he's sitting on it." Third, the prosecutor proceeded on
alternative theories of joint possession and constructive
possession, which would take into account Brown's possible
connection to the firearm. Fourth, the judge recognized that
the level of prejudice is different when considering the
15
introduction of evidence that another person had been convicted
of a crime, as opposed to evidence that a defendant had been
convicted of a crime. Compare Nicoll, 452 Mass. at 822 (judge
failed to consider alternative to mistrial where he did not
offer defendant option of waiving his right to trial by full
jury and proceeding with five jurors as permitted by Mass. R.
Crim. P. 19 [b], 378 Mass. 888 [1979]); Jones v. Commonwealth,
379 Mass. 607, 618 (1980) (judge failed to consider alternative
to mistrial where he believed that severance of defendants was
not available option).
It would have been better practice for the judge to state
expressly the available alternatives to a mistrial, if any
existed, and the reasons why the available alternatives were not
viable options to remedy the cause of the mistrial, and the
single justice's decision emphasizes these deficiencies.
Nonetheless, we view the judge's declaration of a mistrial, made
after she provided counsel with the opportunity to be heard and
weighed the available options, as an implicit finding that she
considered her proposed curative instruction, and determined
that a mistrial was a manifest necessity. See Commonwealth v.
Bishop, 461 Mass. 586, 595 (2012) (evidence supported judge's
implicit finding that statement was given voluntarily beyond
reasonable doubt).
As stated, before declaring a mistrial over a defendant's
16
objection, a trial judge is required to balance the competing
interests of a defendant's right to have his or her case decided
by a particular jury, Cruz, 461 Mass. at 670, and the public's
interest in "fair trials designed to end in just judgments."
Id., quoting Oregon v. Kennedy, 456 U.S. at 672. A judge is
permitted to take into account the cause of the mistrial. See
Jones, 379 Mass. at 620. "It would be a reproach to the
administration of justice if a defendant through his counsel,
could pollute the atmosphere of a trial and then turn this to
his own advantage on appeal." Id., quoting Commonwealth v.
Lewis, 346 Mass. 373, 379 (1963), cert. denied, 376 U.S. 933
(1964).
In this case, the judge issued an explicit order
prohibiting defense counsel from eliciting evidence that Brown
previously had been convicted of a firearms offense. Defense
counsel was not content with registering his objection to that
order, disregarded the judge's explicit instruction, and
inquired into a prohibited topic. After weighing possible
alternatives to a mistrial, the judge concluded that nothing
else would suffice. While there is no "bright-line rule as to
what constitutes manifest necessity," Cruz, 461 Mass. at 671, in
the circumstances here, the trial judge's decision was not an
abuse of discretion. See id. at 672. Therefore, the single
justice's decision, applying a substituted judgment standard,
17
must be vacated.
3. Conclusion. The judgment allowing the defendant's
petition pursuant to G. L. c. 211, § 3, is vacated and set
aside. The matter is remanded to the county court for entry of
an order denying the defendant's petition.
So ordered.