Jurisdictional Statement — Costarelli v. Massachusetts

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Supreme Court, U. S.

FILED

MAY 20 1974

MICHAEL RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

wo, ©3837 F739

STEVEN COSTARELLI, Appellant

Vs.

COMMONWEALTH OF MASSACHUSETTS, Appellee

ON APPEAL FROM THE MUNICIPAL COURT OF

THE CITY OF BOSTON

JURISDICTIONAL STATEMENT

Robert W. Hagopian, Esq.

Wrentham, Mass, 02093

Counsel for Appellant

Tel. (617) 384-3333

INDEX TABLE OF CASES

Page Page

Opinion Below... «+e eee+ee ee eee 2 Barker v. Wingo, 33 LEd 2nd 101 7

Jurisdiction eeeeeeeesee# ee @¢e. 2 ; Benton Ve Maryland, 89 $.Ct. 2056 4

Questions Presented Tne ee = Sw ae oe a 3 Callan Vv. Wilson, 127 U.S. 540 3, 4, 6

Statutes Involved Eweaweweneaskks 2 st oo 3 Cohens Vv. Virginia, 6 Wheat 264 | 3

Statement of the Case .<<¢ 2 2 & @2 & 6 Se 6 © 4 Colten Vv. Kentucky, 326 LEd 2d 584 7

The Questions are Substantial ......e. 4 Duncan v. Louisiana, 391 U.S. 145 a ae

Conclusion. . 7 . = . . . . . . e . e s ° . 7 Holliday Ve. State, 109 R.I. 93 4, 7

Appendix ' Jones v. Robbins, 8 Gray 329 6

A oo Statutes Involved, ee ee ee ee ee ee ee ee ee | 9 | Kentucky Vv. Powers, 201 2.2. l 3

-B -- Record of Municipal Court of ‘Klopfer v. North Carolina, 386 U.S. 213 4

Boston, . . e . ° - . . . - . - . . . 12

Largent v. Texas, 318 U.S. 418 3

C -- Notice of Appeal . . 2. 2. « «© «© e © «© « Ll? —=

Lemieux v. Robbins, 414 F2d 353 7

Mann v. Commonwealth, 271 NE 2d 331 2

Manns v. Commonwealth, 213 vA 322 6

Powell v. Texas, 392 U.S. 516 3

Thompson v. City of Louisville,

362 U.S. 199 3

United States v. Green, 355 U.S. 184 8

United States v. Jorn, 400 UV S. 470 4,8

TABLE OF CASES

IN THE

SUPREME COURT OF THE UNITED STATES

Page

United States v. Marion, 404 U.S. 307 7

October Term, 1973

Ward v. Village of Monroeville,

34 LEd 2nd 269 8

No. —

Williams v. Florida, 399 U.S. 78 7 ’

STEVEN COSTARELLI, Appellant

vs.

COMMONWEALTH OF MASSACHUSETTS, Appellee

ON APPEAL FROM THE MUNICIPAL COURT OF

THE CITY OF BOSTON

JURISDICTIONAL STATEMENT

Appellant appeals from his conviction from

the Municipal Court of the City of Boston, Massa-

chusetts, entered on February 27, 1974 on a

charge of unauthorized use of a motor vehicle,

and submits this statement to show that the Su-

preme Court of the United States has jurisdiction

of the appeal and that a substantial question is

presented,

iii 1

OPINION BELOW

No opinion, findings of fact, or conclusions

of law were reported by the Municipal Court of

the City of Boston.

JURISDICTION

Appellant was convicted on February 27, 1974

in the Municipal Court of Boston and notice of

appeal was filed in that court on May 16, 1974,

The jurisdiction of the Supreme Court to review

this decision by direct appeal is conferred by

28 U.S.C. Sec. 1257(2).

Appellant submits that the Municipal Court of

the City of Boston is a "highest court" of Massa-

chusetts within the meaning of the words in Sec,

1257. From a conviction in a criminal proceed-

ing in a district court of Massachusetts, there

is no direct appellate review, but only a trial

de novo, or collateral relief, e.g. habeas

corpus. Chief Justice Tauro recently summarized

this principle in Mann v. Commonweaith, 271 NE

2d 331 (1971) at p. 333:

"In Massachusetts, the legislation

permits a de novo Superior Court

trial for the defendant in all

aspects of the case but it does

not provide a method of reviewing

error of law committed in the

course of the trial in the Dis-

trict Courts, See G.L. C.250 Sec.

9. It is reasonable to conclude

that the Legislature intended

that, upon appeal, the question

of guilt, the sentencing power and

all related matters te transferred

to the Superior Court for deter-

mination completely divorced from the

record of the prior trial.3 3. See

Duncan v. Louisiana, 391 U.S. 145, ...

We need not speculate whether convic-

tions in the District Court resulted from

error."

The following decisions sustain the jurisdiction

of the Supreme Court to review the judgment on

direct appeal in this case: Cohens v. Virginia,

6 Wheat. 264, 375-6; Kentucky v. Powers, 301 U.S.

1, 37-39; Largent v. Texas, 318 U.S. 418, 422;

Thompson v, City of Louisville, 362 U.S. 199, 202;

Powell v. Texas, 392 U.S. 516, 517.

QUESTIONS PRESENTED

1. Are the States bound by the federal rule

of Callan v. Wilson, 127 U.S. 540 guaranteeing

defendants a trial by jury in the first instance

when charged with an offense carrying a possible

jail sentence in excess of six months?

2. Do state two-tier trial de novo procedures

which deny a defendant a trial by jury in the

first instance for a crime carrying a possible

prison term in excess of six months impose an

unconstitutional burden on the right to a speedy

trial and violate the double jeopardy provisions

of the Fifth Amendment?

STATUTES INVOLVED

Article XII of the Declaration of Rights of

the Massachusetts Constitution, Massachusetts

Gemeral Laws Ch, 263 Sec. 4, Ch. 218 Sec. 26,

Ch. 278 Sec. 2, 18, and 24, comprise the frame-

work of Massachusetts’ two-t.er trial de novo

criminal procedure and are set forth in the Ap-

pemdix,

STATEMENT OF THE CASE

A complaint was issued against appellant for

the unauthorized use of an automobile, a crimin-

al offense under M.G.L. Ch, 90 Sec. 24 (2) (a)

carrying a possible two year jail sentence.* On

February 27, 1974, appellant was tried on this

charge in the Municipal Court of Boston. Appel-

lant duly moved the trial court in writing for a

trial by jury in the first instance, asserting

that this right was guaranteed by the Sixth

Amendment pursuant to Callan v. Wilson, 127 U.S.

540 and Duncan v. Louisiana, 381 U.S. 145. The

trial court denied this motion. The government

placed its case in evidence and rested. The

appellant did not testify or present any wit-

messes or introduce any evidence. At the con-

clusion, the trial judge found appellant guilty.

Appellant brings this appeal to vacate the con-

viction of the Municipal Court of Boston.

The federal questions underlying this appeal

were raised by appellant at his trial in the

Municipal Court of the City of Boston by his

motion for a trial by jury. In this motion, he

expressly claimed his right to a speedy trial

by jury under the Sixth Amendment citing Callan

v. Wilson, supra, Duncan v. Louisiana, supra,

Klopfer v. North Carolina, 386 U.S. 213, and

Holliday v. State, 280 A. 2d 333, and his rights

under the double jeopardy clause of the Fifth

Amendment citing Benton v. Maryland, 89 S. Ct.

2056, and United States v. Jorn, 400 U.S. 470.

The entire record of the "non-record" Munic-

ipal Court of Boston comprises the complaint

setting out the charge; appellant's written mo-

Ithe relevant part of M.G.L. Ch. 90 Sec. 24(2)

(a) is set out in the Appendix, p. ll.

for a speedy jury trial in which he specifi-

cally claimed his constitutional rights; the

trial judge's written denial on the motion;

and his written guilty finding noted on the

complaint. A copy of the entire record is set

forth in Appendix pp. 11-15.

THE QUESTIONS ARE SUBSTANTIAL

1, Massachusetts criminal procedure comprises

a two-tier trial de novo system. Defendants, for

the most part,? are charged initially upon a

complaint in the non-record district court

where they cannot obtain a trial by jury. Upon

a conviction in the district court, a defendant

cannot obtain any direct appellate review, 3 but

has an automatic right to "appeal" his convic-

tion for a trial de novo in the Superior Court

where he may obtain a trial by sury.4 If the

defendant fails to prosecute his "appeal", the

superior court may default him and impose sen-

tence for the crime he was convicted of in the

district court by a magistrate.

The district courts in Massachusetts have juris-

diction over all crimes having an authorized

punishment up to five year imprisonment. See

M.G.L. Ch. 218 Sec. 26 set out in the Appendix

p. 10,

Extraordinary writs and collateral relief invok-

ing the Supreme Judicial Court's supervisory

powers are available,

See M.G.L. Ch. 278 Secs. 2 and 18 set out in

the Appendix p. 10,

>See M.G.L. Ch. 278 Sec, 24 set out in the Ap-

pendix p. 10.

The Supreme Judicial Court of Massachusetts

held in Jones v. Robbins, 8 Gray 329, 341 that

Massachusetts' two-tier trial de novo system

does not violate Article XII of the Declaration

of Rights of the Massachusetts Constitution

guaranteeing that no law "shall subject any

person to ... infamous punishment ...without

trial by jury" which words Chief Justice Shaw

stated were “equivalent” to the clause — "in

all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by

an impartial jury" ~~ in the Sixth Amendment,

In Callan v. Wilson, 127 U.S. 540, Justice

Harlan took note of Jones v. Robbins at page

553-4 and rejected its reasoning at page 556-7

by holding that the Sixth Amendment guarantee to

a trial by jury meant trial by jury in the first

instance: “Except in that class or grade of of-

ffenses called petty offenses, ...the guarantee

of an impartial jury to the accused in a crimin-

al prosecution, conducted eithe-: in the name, or

by or under the authority of, the United States,

secures to him the right to enjoy that mode of

trial from the first moment, and in whatever

court he is put ontrial for the offense charged."

Duncan v. Louisiana, 391 U.S. 145, 149 bound

the states to the Sixth Amendment and by dicta,

the rule of Callan v. Wilson, supra. See Duncan

at page 148 ftn., 30, 181, 182 ftn. 21, 213. The

Rhode Island Supreme Court in Holliday v. State,

109 R.I. 93 (1971) has held unanimously that

Duncan has bound the states to the rule of Cal-

lan v. Wilson. The Supreme Court of Virginia

has held the contrary in Manns v. Commonwealth,

213 Va. 322. The issue is undecided among the

two-tier trial de novo systems of other states.

Carticle XII of the Declaration of Rights of the

Massachusetts Constitution is set out inthe Ap-

pendix p. 9.

See ftn. 9 and 10 in Colten v. Kentucky, 32 LEd.

2d 584, 592 (1972) citing Massachusetts, Nortn

Carolina, Pennsylvania. Cf. Lemieux v. Robbins,

414 F2d 353, 355 ftn. 3 (1969) noting the two-

tier procedure in Maine. See also: 0D. Non-Jury

Trial for Misdemeanors Subject to De Novo Review,

Appendix to opinion of Justice Harlan, Williams

v. Florida, 399 U.S. 78, 141.

2. The companion issue presented by this ap-

peal is whether the imposition of atrial without

jury is an unconstitutional burden on the defendant's

right to a speedy trial by jury which he was un-

questionably entitled to under the Sixth Amend-

ment. The two-tier trial de novo procedure is

totally counter-productive to minimizing the

“anxiety and concern of the accused", Barker v.

Wingo, 33 LEd 2nd 101, one of the main purposes

of the speedy trial guarantee. For the defendant

who chooses not to disclose his defense, a trial

in the district court is a meaningless proceeding.

A conviction and “appeal” from a district court

trial generates a "cloud of anxiety, suspicion

and often hostility", Barker v. Wingo, supra,

and United States v. Marion, 404 U.S. 307, 321,

and shifts the burden on the defendant to prose-

cute his “appeal to prove his innocence, M.G.L.

Ch. 278 Sec. 24, See Holliday v. State, supra,

alternatively holding that two-tier trial de novo

procedures violate the speedy trial provisions

of the Sixth Amendment.

Similarly, the two-tier trial de novo system

inherently violates the underpinnings of the dou-

ble jeopardy provisions of the Fifth Amendment —

"/T/he State with all its resources and power

should not be allowed to make repeated attempts

to convict an individual for an alledged offense,

thereby subjecting him to embarrassment, expense,

and ordeal and compelling him to live in a con-

tinuing state of anxiety and insecurity, as well

as enhancing the possibility that even though

innocent he may be found guilty", United States

7. Green, 355 U.S. 184, 187-188.

Implicit in limiting "the Government to 4

single criminal proceeding to vindicate its very

vital interest in enforcement of criminal laws",

United States v. Jorn, 400 U.S. 470, is limiting

it to a single proceeding which comports with con-

stitutional standards, and it is no answer on the

part of States to eventually offer the defendant

a constitutional de novo adjudication, Ward v.

Village of Monroeville, 34 LEd 2nd 269, 272

(1972).

Since the above issues effect the administra-

tion of criminal justice in at least ten states,

and since there is a conflict between the de-

cisions of the highest court of at least two of

these states, it is submitted that the questions

presented by this appeal are substantial and of

public importance.

CONCLUSION

Appellant maintains that the Municipal Court

of the City of Boston erred in denying him a

trial by jury. Hebelieves that such a denial

violated his Sixth Amendment right to a trial

by jury and to a speedy trial. It is submitted

that the questions presented by this appeal

are so substantiai to require plenary consider-

ation for their resolution,

Respectfully submitted,

Re W. Hagopian, Ly

Counsel for Appellant

APPENDIX

Article XII of the Massachusetts Declaration of

Rights:

No subject shall be held to answer for

any crimes or offense, until the same is

fully and plainly, substantially and form-

ally, described to him; or be compelled to

accuse, or furnish evidence against him-

self. And every subject shall have a right

to produce all proofs, that may be favor-

able to him; to meet the witnesses against

him face to face, and to be fully heard in

his defense by himself, or his counsel, at

his election. And no subject shall be ar-

rested, imprisoned, despoiled, or deprived

of his property, immunities, or privileges,

put out of the protection of the law, ex-

iled, or deprived of his life, liberty, or

estate, but by the judgement of his peers,

or the law of the land,

And the legislature shall not make any

law, that shall subject any person to a

capital or infamous punishment excepting for

the government of the army and navy, without

trial by jury.

The relevant portion of M.G.L. Ch. 218 Sec. 26 dy, may issue process to bring himinto court

reads: to receive sentence.

District courts shall have original ju- The relevant portion of M.G.L. Ch. 90 Sec. 24(2)

risdiction, concurrent with the superior (a) reads:

court, of the following offenses committed

within their respective districts or other- Whoever ..... and whomever uses a motor vehi-

wise made punishable therein; all violations cle without authority knowing that such use is

of by-laws, orders, ordinances, rules and unauthorized shall, for the first offense be

regulations, made by cities, towns and pub- punished by a fine of not less than fifty dollars

lic officers, all misdemeanors, except li- nor more than five hundred dollars or by imprison-

bels, all felonies punishable by imprison- ment for not less than thirty days nor more than

ment in the state prison for not more than two years, «eee «

five years, the crimes mentioned in ... .

The relevant portion of M.G.L. Ch. 278 Sec. 18

reads:

Whoever is convicted of a crime before a

district court may appeal to the superior

court, and at the time of conviction shall

be notified of his right to take such appeal,

M.G.L. Ch. 278 Sec. 2 reads:

Issues of fact joined upon an indictment

or complaint shall, in the superior court

be tried by a jury drawn and returned in the

trial of issues of fact in civil causes, un-

less the person indicted or complained

against elects tobe tried by the court as

provided by law.

M.G.L. Ch 278 Sec. 24 reads:

If the appellant fails to enter and prose-

cute his appeal he shall be defaulted on his

recognizance and the superior court may im-

pose. sentence upon him for the crime of which

he was convicted, as if he had been convicted

in said court, and if he is not them in custo-

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COMMONWEALTH

UN COMPLAINT OF

Richard Tracy

vs.

Ste:en Costarellt

AGO

UNAUTHORIZED USE OF

AUTOMOBILE

Gen. Laws Chap. 90 Sec. 24

30 days

$50-$500 or 2-Months-2 years or both

JAN 23 1974

‘

72: 340 Psd Sr are o

v4 Ph i . . U a(t

AY gh 18 IRE

‘ ' daeloF el FR 4 dels re :

COMMONIWEALTH OF MASSACHUSETTS

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(\* : , T * ~

yoers J/4 SYFFOLK, MUNICIPAL COURT OF

j EG at | Q THE CITY OF BOSTON

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freakin Kha CRIMINAL - S

EOUTD

COMMONWEALTH OF MASSACHUSETTS

7) .

Z) vs.

NOUS" OF CORRECTION “o Mes. NRA

STEVEN COSTARELLI

- lie NOTICE OF APPEAL TO THE SUPREME

BUI, OF. ere COURT OF THE UNITED STATES

Jat NSIDAX orky eareOa_ a | |

Notice is hereby given that Steven Costarelli, the

AQ ric bu lee appellant above named hereby appeals to the Supreme

Court of the United States from the conviction of the

Municipal Court of tthe City of Boston on February 27,

1$74. This appeal iis taken pursuant to 28 U.S.C. Sec.

1257(2).

By his attorney,

fret Tey,

Robert W. Hagopian, Esq.

Wrentham, Mass. 02093

BEST COPY AVAILABLE

CERTIFICATE OF SERVICE

Now comes Robertt W. Hagopian, Esq., and certifies

that he has served m copy of the above Notice of Appeal

on Arthur Murphy, Boston Police Prosecutor, by mailing a

copy of same first class, postage prepaid, Boston Police

Supreme Court, U. & _. :

FILED

SEP 25 1974 :

MICHAEL RODAK, JR. CLERK IN THE

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denied a

ial by jury upon a charge car-

rying a possible maximum jail sentence of

two years. The court refused to accept

discretionary jurisdiction under M.G.L.

Ch. 211 Sec. 3 which grants to the

Supreme Judicial Court “general super-

intendence of all courts of inferior

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general Superintendence of all courts

f inferior jurisdiction to correct

2 y Sy — ~rSF } sco Ac + ha 3

and prevent errors and abuses therein

] ; "y a

if no other remedy is e) essly pro-

vided; and it may issue all writs and

processes to such courts and to cor-

porations and individuals which may

be necessary to the furtherance of

justice and to the regular execution

of the laws.

made it clear that there was no procedure

for direct appellate review of a district

court trial — "In Massachusetts, the

legislation permits a de novo Superior

Court trial for the defendant in all

aspects of the case but it does not pro-

vide a method of reviewing error of law

committed in the district courts." The

appellee also concedes this point on p.4

of his brief — "...the judgment [of a

district court] is not subject to further

review...”". In Whitmarsh v. Commonwealth,

supra, the Supreme Judicial Court declared

that it did not have jurisdiction for

discretionary review over a conviction in

a district court. Accordingly, appellant

submits that the district court of Massa-

chusetts is a “highest state court” with-

in the meaning of these words in Section

1257 (b).

Lastly, it should be

appellee suggests that a

of Massachusetts is not a

court" because a defendant has a right

appeal by trial de novo to the Superior

Court. The short answer to this i

a trial de novo is not a method

review. It is a new trial. ‘Similarly,

while it is true that a defendant may

raise his double jeopardy claim by a

motion to dismiss in the Superior Court

as the Supreme Judicial Court suggests in

the Whitmarsh "nee. this procedure is a

collateral remedy and, as such, is immate-

rial to the issue of this Court's juris-

diction under Sec. 1257 (b).

Respectfully submitted

[petro |

Robert W. HagoSian,

WALTER E. WHITMARSH vse COMMONWEALTH.

QUIRICO, J. On September 6, 1973, the plaintiff in

the present case was tried in a District Court on a

complaint charging him with the misdemeanor of operating

a motor vehicle while under the influence of intoxicating

7. yy

liquor. G. L. c. 90, § 24 (1) (a), as amended through St. 1971,

ec. 1071, § & Before the trial started he filed a written

motion for a trial by jury which was denied. After a

trial before a judge of the District Court, at which he

rested, without presenting any evidence, upon completion

of the Commonwealth's case, he was found guilty and fined

100. He appealed therefrom to the Superior Court (G. L.

18), requesting the court to note that the appeal

“was not to be considered a waiver of his demand for a

trial by jury and was being made only to preserve that right

procedurally." The appeal was entered in the Superior Court

on September 10, 1973, and it has not been tried.

On September 18, 1973, the plaintiff filed a document

entitled “INTERLOCUTORY APPEAL” with the clerk of this

court for Suffolk County alleging the facts

stated above and asking, that the court declare that the

"Massachusetts two-trial de novo procedure « « e [violates]

Article XII of the Massachusetts Constitution and the Fifth,

Sixth, and Fourteenth Amendment[s] of the United States

Constitution," and that it “enjoin the Commonwealth from further

prosecuting the complaint initiated in the District Court.

The latter request was denied by the single justice

on November 8, 1973, and the plaintiff excepted thereto. On

December 10, 1973, the Commonwealth filed an answer admitting

all of the facts alleged in the plaintiff's petition. On

January 11, 1974, a single justice of this court, acting at

the request of the parties, reserved and reported-the case

without decision to the full court for its determination on

the plea fir Se

d On September 20, 1973, the plaintiff filed a motion in

the Superior Court requesting that the complaint which was the

subject of the appeal be dismissed. An examination of the

docket entries in that appeal indicates that the motion had

not been acted on up to the date of argument before the full

court in the present case.

Questions of Procedure and Standing.

We are confronted at the outset with several] serious

questions concerning the precedure by which the plaintiff

seeks to raise the important issue of the constitutionality

of this Commonwealth's two-tier court system and his standing

to do so in the particular circumstances of this case.

le Purported Interlocutory Appeal. Despite the plaintiff's

designation of his petition as an “INTERLOCUTORY APPEAL,"

it is not such in fact or in law. The only interlocutory

appeal available to a defendant in a criminal case in this

Commonwealth is that provided by G. L. c. 278, 3} 28E, inserted

by St. 1967, c. 898, § 1. That statute permits a defendant

"in a felony case" to make application to the Chief Justice

or to a single justice of this court for leave to take “an

interlocutory appeal from a decision, order or judgment of the

superior court determining a motion to suppress evidence prior

to trial." This case does not come within the quoted statutory

language, first, because it involves a misdemeanor and not a

felony, and, second, because there has been no “decision, order

or judgment of the superior court" on a “motion to suppress

evidence."

een

PR ERE certs

2, Relief under G. Le ce. 211, 3 3. The first paragraph

the plaintiff's petition states that the jurisdiction of

this ecurt is invoked pursuant to G. Le c. 211, § 3 (as

amended by St. 1956, c. 707, y 1),% which provides in part

that this court "shall have general superintendence of all

courts of inferior jurisdiction to correct and prevent errors

and abuses therein if no other remedy is expressly provided"

(emphasis supplied). We have indicated in a number of

decisions that our power under this statute should be used

sparingly, and that it should rarely be used in a case where

some other practical remedy is available. In Barron Vv.

Barronian, 275 Mass. 77, 80 (1931), we characterized a request

for relief under this statute as a request "for extraordinary

intervention." In Gilday v. Commonwealth, Mass. (i971) W

we said: "Only in the most exceptional circumstances will we

review interlocutory rulings in criminal cases under our

general superintendence powers," and we there exercised the

power to avoid an error which “might be irremediable, and

possibly not curable even by a new trial since the defendants

could not thereafter be placed in statu quo." Id. at .

A sce Ste 1973, ce 1ll&k, 9 Ah, effective July 1, 1974,

amending ; 3 as part of a statutory revision to conform the

General Laws to the new Massachusetts Rules of Civil Procedure,

also effective July 1, 197k.

NY Mass. Adv. Sh. (1971) 1349.

In Myers v. Cor t th. M

Corey v. C : th, Mass

une lane laze q! € fr

exercised our extraordinary f

prosecuted in the

A comparison

Ae “7

io aay

©. s.eewt

ouperi

of the very few cases in

ordinary powers un

respect to inter!

der Ge

“—

IC Ut ry

ers ani

or Cou

f". .

L1acCts

which

ruiin

aSSe : (1973), ° and in

: , (1973),¥we repeated

the Gilday case and then

wer under } 3 to insure the

hearings in the District Courts

ad Corey before they could be

rt.

of the present case with those

we have exercised our extra-

2il, y 3, to give relief with

3S in criminal cases leads us

to conclude that this is not an instance where such relief

should be granted,

(a) This is not a case where "no other remedy is expressly

provided.” The constitut issue the plaintiff now asks us

to decide is t} e iss which he raised in the District

Court, and in the Superior Court by his motion to iia

if his motion were denied i if he were thereafter tried in

the Superior Court and found guilty, the plaintiff would have

vailable to him an opportunity for appellate review of the

ing on his moti aS matter of right by saving and

perfecting exceptions thereto. The sincle justice properly

\S itass. f e Wile y ) } +9 | i,€ .

She | ) 1238.

refused to stay proceedings in the Superior Court for the

purpose of enabling the plaintiff to argue before the full

court that he had no other remedy. The fact that the

plaintiff's constitutional claims could be rendered moot if

he were acquitted in the Superior Court would not, in our

opinion, prejudice him in such a manner as to warrant the

exercise of our “extraordinary” powers of review under

Ge Le ce 211, § 3. Barber v. Commonwealth, 353 Mass. 236,

239 (1967).

(b) In challenging the two-tier court system, one of

the plaintiff's principal arguments is that it denies him

the right to a speedy trial in violation of the Sixth

Amendment to the United States Constitution. He appears to

argue that this right is violated both by the requirement for

an initial nonjury trial to a judge in the District Court and

by the fact that even apart from the District Court proceeding

“the time schedule in the Superior Court for { jury] trial

of misdemeanors and less serious felonies is deplorable."

The circumstances of this case suggest, however, that the plaintiff

is in no position to raise this speedy trial claim. The plaintiff

was tried in the District Court on September 6, 1973, within

fifteen days after his arrest. His appeal taken on that date

‘ tered in the Superior Cou 1. Se mb O 9" t ; at ds -

was entered — oe C mr ee — er} ’ 1973.6 the Cc mpiaant arainst hin und the stay waS Gen.ieude ne Was

1 ad a oe 4 h 1a 1 to Fo’ - e . ; r ; ; . > . . . . ns

plaintiff then elected to proceed before the single justice therefore required to appear for trial of his appeal when

of this court rather than to let his appeal take its course ‘t was called in the Supericr Court on March 6, 1974. The

_— +) “AY ~y),y | , Y) 2 . ” b . . . "

in the Superior Court. When that appeal was reached for filing and pendency of his petition in the present case

wih « rf + yo. th Vv n - ej - . . . | ; : ;

trial in the Superior Court on November 15, 1973, he requested did not relieve him from the obligation to appear. It is

o c r ; 1} Py jc 5 ; } : ie | 4 ;

that the case not be tried because of his petition pending not within his power to decide unilaterally that he will

before the single justice, and when the case was reached again

rosecute this civil action and, while doing so, fail, neglect

i ior Court on March 6 971 did n - : ; “

oe eee Sas ae p SPE Ss yer ae or refuse to appear for trial in the Superior Court when

é fi d je has never taken any action ; , P — 2

was defaulted. H _ y required to do so. Under the terms of Ge Le C. 278, § 18,

. ;or 117°T, nn > +c Wea ( ; 7 o e *~ a * .

in the Gupseter Cows te aanees Nhe Sige Se epeesy Seat on taking his appeal to the Superior Court he was released

lai ifft nduct - ; ; ee

The plaintiff's conduct at all stages of the proceedings on personal recognizance “with condition to appear at the

snns > > . , se ;

indicates that either he or his counsel, or both, have adopted superior court on said return day fof the appeal] and at any

the strategy of delaying a jury trial in favor of their attempts

: subsequent time to which the case may be contir 1 «© © o &!

to obtain an interlocutory ruling on the constitutional question so from time to time until the final sentence, rder or decrec."

en ee Se eee He has viclated that obligation and he is therefore not

3. Motion to Dismiss Petition. When this case was reached

entitled to the review of interlocutory questions he now seeks.

for argument before the full court, the Commonwealth offered “By his voluntary act, which renders him unavailable

} i a J a ae ’ si 2 6 +2 aadali 4 ~ < ) 2

and argued a motion thi ; laintiff' iti ismi ' — > of _ ‘ ,

and argued 8 motion that the plaintifi’s petition be Ciamissed to await the decision of the court, he has waived appellate

vecause of his failure to appear in the Superior Court when his ithts." Commonwealth v. Rezendes, 353

rarnvu . mmon 2a aw Vil Ve i SriU ’ 7 a

case was called for trial on his ‘appeal on March 6, 1974, and

his resulting default which continued at the time of the

Le Cc cs Aw . 0 tne c asi f 4 discus LOI above Wwe

argument noted above, on filing “esent petitio | ye , | a cas a =

Mn fees ae sisccssinn Papi cabecsansicnt etese aire tani conelude as follows: (a) that the petition in this case cannot

plaintiff had requested a stay of further proceedings on the

; ; ; ‘ . ; 7 “<7 (Of 7

intuined as an application for an Interiocutory appea.,

(: that it cannot be maintained as a petition for the exercise

of this court's extraordinary powers under G. L. c. 211,

§ 7, and (c) that by reason of his failure to appear for

trial when his case was called in the Superior Court the

plaintiff is not entitled to any appellate relief from this

court even if such relief were otherwise available to him,

Tne Plaintiff's Constitutional Claims.

Although for reasons already discussed the plaintiff

is not entitled to relief in this case, we think that in

view of the nature of the question which he attempted to

raise and in view of the fact that the plaintiff's counsel appears

determined to raise the same question in other on. ©

WY the following are several other cases in which the

plaintiff's counsel has raised substantially the same con-

stitutional question which he is raising in the present case:

(1) Scheller v. Burke, Civil Action No. 73-428-G (D. Mass.),

affirmed on January 3, 1974, by the United States Court of Appeals

(lst Cir.) No. 73-1296.

oran v. Hedges, Civil Action No. 73-91-M (D. Mass.);

’ aleq he United States Court of Appeals (lst Cir.)

Noe 73-8074, and decided on January 4, 1974, by the following

MEMORANDUM AND ORDER:

"Present counsel, representing various clients,

seems determined to find a way to attack the Massachu-

setts so-called two tier system of criminal trials in

the federal court without having to do so first in the

State court. We decline to speculate on the anticipated

aivantages, if any, but we repeat that we are totally

unsympathetic in the absence of convincing reasons.

"Absent undue delay the federal courts will] not step

in where procedur cs, availatle in the state court to raise

the issues presented, arc not pursued, Our ears are

particula@ly closed when a purty allegedly desiring speed,

seexs ‘it expeditiously in one area and not in another,

ought, as was done in Wellesley College v. Attorney Gene

313 Mass. 722, 731 (1943), to express briefly our opinion

upon the constitutional question that has been argued.

Simeone Stone Corp. Vv. Board of Appeals of Bourne, 345 m4

18@, 192 (1962). Harvard v. Maxant, Mass. ; (1971).

ane boners &

Karchmar v. Worcester, Mass. ; (973) W

1. Sixth Amendment Claims. The plaintiff argues that

our two-tier court system, under which he was first placed on

trial before a District Court judge and then required to

appeal to the Superior Court if he desired a trial de novo

before a jury, violates the trial BY jury and speedy trial

provisions of the Sixth snendnenn We have concluded above

that on the facts of this case the plaintiff's argument

relating to his right to a speedy trial is without merit and

"The request for a certificate of probable cause

is denied.”

(3) Almeida v. Lucey, 372 Fe Supp. 109, 111 (D. Mass.

three-judge court, 19O7L), app. pendinge

(4) Whitmarsh v. Commonwealth, No. 73-183 (Equity),

Supreme Judicial court for the County of Suffolk.

(5) Costarelli v. Buckley, No. 74-168 (Law), Supreme

Judicial Court for the county of Suffolk.

\Y mass. Adv. Sh. (1971) 1601, 1605.

Vi/iass. Adv. Sh. (1973) 1223, 1234-1235.

WWene pertinent langruag of the Sixth Amendment is: *

a > : - - peewee wiee on io ; ; t

all criminas pr secutions, tne accust ; shall nd Ly pe ny i

to a speedy and public trial, by an impartial jury ©

state and district wherein the crime shall have been committ

id.”

we will not discuss the claim ey See Rarker v.

‘

Wingo, 407 U. Se S14, 530-533 (1972). What must still be

considered is whether, as the plaintiff asserts, the two-

tier court system violates a right of an accused purportedly

guaranteed by the Sixth Amendment to have a jury trial “in

the first instance." It is this assertion which is at the

core of the plaintiff's constitutional challenge to that

system,

This court has not heretofore censidered the question

whether our two-tier court system in and of itself violates

the jury trial requirement of the Sixth nan wa

it has considered the question in relation to the similar

requirement included in art. 12 of the Declaration of

Rights of the Massachusetts Constitution: “And the legislature

shall not make any law that shall subject any person to a

capital or infamous punishment, excepting for —!,

of the army and the navy, without trial by jury."

\/ the Supreme Court identified in that case several factors

which courts should assess or weigh when considering a claim of

denial of the right to a speedy trial: “Length of delay, the

reason for the delay, the defendant's assertion of his right,

and prejudice to the defendant." Id. at 530. In the circum-

stances of the case before us it is clear that none of these

factors can or should be weighed in favor of the plaintiff.

Win Mann ve Commonwealth, 359 Mass. 661, 667 (1971) (Mass.

Adv. St. [TI7T) 1027, Totz-103:), we briefly considered the more

imits question whether “the imposition of a greater sentence

after a de novo trial unconstitutionally burdens . « -« fa criminal

iefendant’s! right to a jury trial,” but there is no indication

ASC wiether Mann's contention that it did so was based

the Sixth Amendment or on art. 12 of the Massachusetts

: .

Declarati< f Rights

VW The full text of that part of art. 12 relevant to this case

reads as f St “And no sut ject shall be arrested, imprisoned,

lespoliled, or deprive f his property, immunities, or privileyes,

yut cut of the protection of the law, exiled, or deprived of his

’ ’

In Jones v. Robbins, 8 Gray 329 (1857), in which the principal |

question involved was whether a person could be sentenced to State

prison without a grand jury indictment, the court said: “The last

clavse [of art. 12], which seems to have been added for greater

caution, prohibiting the legislature from making any law

which shall subject any person to a ‘capital’ or ‘infamous

punishment,’ .« « « is somewhat more explicit than the

preceding clause, ‘judgment of his peers,’ and may be

equivalent to the clause in the sixth article of amendment

of the Constitution of the United States, declaring that,

‘in all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury.’

We believe it has been so practically understood; and where,

by the terms of any law, a justice of the peace or police court

has been authorized to hear and pass sentence, it has always

been accompanied by a right of appeal. And we believe it has

been generally understood and practised here and in Maine, and

perhaps in other states having a similar provision, that as

the object of the clause is to secure a benefit to the accused,

which he may avail himself of or waive, at his own election;

and as the purpose of the provision is to secure the right,

without directing the mode in which it shall be enjoyed; it is

not violated by an act of legislation, which authorizes a single

maristrate to try and pass sentence, provided the act contains

Tite, llvert,, or estate, out Ly the judgment of his peers, or the

law of the tand. And the legislature chail not make any law, that

shall subiect any person to a capital or infamous punishment,

exceptin vor the government of the army and navy, without trial

”

y JuUrye

a provision that the party shall have an unqualified and

unfettered right of appeal, and a trial by jury in the

late court .« « ee It appears to us, therefore, that

such a provision is not void, as a violation of that clause,

which, in criminal cases, secures to the accused a right of

trial by jurye" Id. at 341-342. In the more than 100

years since Jones v. Robbins was decided, we have never

questioned this conclusion. See Mann Vv. Commonwealth,

Mass. , - (1971);¥ Commonwealth v. Britt, Mass.

’

The plaintiff concedes that this court has considered,

and continues to consider, the two-tier court system as

satisfying the applicable constitutional requirements of

arte 12 of the Declaration of Rights. He argues, however,

that the Sixth Amendrent has traditionally been held to secure

a criminal defendant in the Federal courts, other than one

charced with a “petty offence,” the right to a jury trial “from

the first moment, and in whatever court, he is put on trial

for the offence charged,” Callan ve Wilson, 127 U. Se 540, 557

(1883), and that whatever the Sixth Amendment requires by way

of a jury trial in the Federal system is now made applicable

to the States through the Fourteenth Amerdment.

NY Mase. Adv. She (1971) 1927, 103°=1033.

NY Masce Adve She (1972) 1443, 14h7.

In Callan v. Wilson, supra, involving a criminal prosecu-

tion in the District of Columbia, the court said at p. 557:

"Except in that class or grade of offences called petty

offences, which, according to the common law, may be proceeded

against summarily in any tribunal legally constituted for

that purpose, the guarantee of an impartial jury to the accused

in a criminal prosecution, conducted either in the name fof], or hy

or under the authority of, the United States, secures to him

the right to enjoy that mode of trial from the first moment,

and in whatever court, he is put on trial for the offence

charged. In such cases a judgment of conviction, not based

upon a verdict of guilty by a jury, is void. To accord to

the accused a right to be tried by a jury, in an appellate

court, after he has been once fully tried otherwise than by a

jury, in the court of original jurisdiction, and sentenced to

pay a fine or be imprisoned for not paying it, does not satisfy

the requirements of the Constitution” (emphasis supplied).

It is clear from the italicized language that this decision,

when rendered, was intended to apply only to Federal prosecutions

and not to State prosecutions. In reaching its decision the

court noted the contrary language in Jones V.

Robbins, 8 Gray 329, 341 (1857), but elected not to follow

it, an action which did not affect the validity of this court's

interpretation of the Massachusetts Coustitution in the Jones

case.

As the plaintiff points out, however, in Duncan Vv.

the Supreme Court

the Fourteenth Amendment

the jury trial provision of the

made applicaple

Sixth Amendment: “Because we believe that trial by jury in

criminal cases is fundamental to the American scheme of justice,

we hold that the Fourteenth Amendment guarantees a right of

criminal] — were they to be tried

come within the Sixth Amendment's

examination of the

concurring dissenting opinions ir that case indicates that

immediately arising among the Justices was whether

or should mean that all prior decisions

Jeral Courts interpreting the jury trial provision of

the Sixth Amendment would be applicable in all respects and

to the States as well, a question to which the opinion

by Mr. Justice White, had given an

PaaMEP ON,

), which states

"Louisiana asserts that if due proces

414 past interpretations of the Sixth

which in its inception was designed to

nd which throughout its history

nment where uniformity is a

federal courts

has operated

Thus, Mr. Justice Black, with whom Mr. Justice Douglas

joined, wrote in his concurring opinion: "The Court today

holds that the right to trial by jury guaranteed defendants

in criminal cases in federal courts by Art. III of the

United States Constitution and by the Sixth Amencment is also

more obvious and immediate consideration. In particular,

Louisiana objects to application of the decisions of this

Court interpreting the Sixth Amendment as guaranteeing a 12-

man jury in serious criminal cases, Thompson v. Utah, 170 U. 5S.

343 71808); as requiring a unanimous verdict before guilt can

be found, Maxwell v. Dow, 176 U. S. 581, 586 (1900); and as

barring procedures by which crimes subject to the Sixth Amendment

jury trial provision are tried in the first instance without a

jury but at the first appellate stage by de novo trial with a

jury, Callan v. Wilson, 127 U. S. 540, 557 (1888). It seems

very unlikely to us that our decision today will require

widespread changes in state criminal processes, First, our

aqecisions interpreting the 5ixth Amendment are always Subject

to reconsideration, a tact amply demonstrated by the instant

decision. In addition, most olf the otates nave provisions ior

jury trials equal in breadth to the Sixth Amendment, if that

amendment is construed, as it has been, to permit the trial of

petty crimes and offenses without a jury. Indeed, there appear

to be only four States in which juries of fewer than 12 can be

used without the defendant's consent for offenses carrying a

maximum penalty of greater than one year. Only in Oregon and

Louisiana can a less-than-unanimous jury convict for an offense

with a maximum penalty greater than one year. However 10 States

authorize first-stage trials without juries for crimes carrying

lengthy penalties; these States give a convicted defendant the

right to a de novo trial before a jury in a different court”

(emphasis supplied).

guaranteed by the Fourteenth Amendment to defendants tried

in state courts. . « e I am very happy to support this

selective process through which our Court has . e » held

most, of the specific Bill of Rights' protections applicable

to the States to the same extent they are applicable to the

Federal Government." Id. at 162-16),. On the other

hand, Mr. Justice Fortas, in his concurring opinion, expressed

an opposing point of view: "But although I agree with the

decision of the Court, I cannot agree with the implication,

see . » « [391 U. S.] at 158-159, n. 30, that the tail must

go with the hide: that when we hold, influenced by the Sixth

Amendment, that ‘due pr’.-ss' requires that the States accord

the right of jury trial for all but petty offenses, we auto-

matically import all of the ancillary rules which have been or

may hereafter be developed incidental to the right to jury

trial in the federal courts. I see no reason whatever, for

example, to assume that our decision today should require us

to impose federal requi** .ents such as unanimous verdicts or a

jury of 12 upon the States. We may well conclude that these

and other features of federal jury practice are by no means

fundamental — that they are not essential to due process of

law — and that they are not obligatory on the States. ...

There is no reason whatever for us to conclude that . .« .

we are bound slavishly to follow not only the Sixth Amendment

but all of its bag and baggage, however securely or insecurely

affixed they may be by law and precedent to federal proceedings.

» « e The Due Process Clause . . « does not command us rigidly

and arbitrarily to impose the exact pattern of federal proceedings

upon the 50 States." Id. at 213-214. Mr. Justice

Harlan, with whom Mr, Justice Stewart joined, wrote a dissenting

opinion in which he stated: "[{The Court] holds, for some

p ’

reason not apparent to me, that the Due Process Clause incorporates

the particular clause of the Sixth Amendment that requires trial

by jury in federal criminal cases — including, as I read

its opinion, the sometimes trivial accompanying baggage of

judicial interpretation in federal contexts." Id. at 172. It has

simply assumed that the question before us is whether the Jury

Trial Clause of the Sixth Amendment should be incorporated intc

the Fourteenth, jot-for-jot and case-for-case, or ignored."

Id. at 181.

There are numerous later statements by various Justices

f the Supreme Court in a series of concurring and dissenting

opinions on the question whether all Sixth Amendment Federal

jury requirements are or are not, or should or should not be,

applicable in their entirety to State criminal trials.

Mr. Justice Fortas's concurring opinion also applied t

Bloom v. Illinois, 391 U. S. 194 (1968), and actually follows

the court's opinion in that case,

1 a

See Bloom ve Illinois, 391 Ue. Se 194, 211, 213-214, 215

(1968); Baldwin v. New York, 39° U. S. 66, 74, 76-77 (1979);

Williams ve Florida, 399 U. S. 78, 86, 102-103, 106, 122-123,

130-133, 136-138, 143 (1970); Johnson v. Louisiana, L406 U. S.

356, 369, 375, 388, 395-396 (1972); Apodaca v. Oregon,

L06 U. Se 404, 406, 410-411, 414-415 (1972). See also

Codispoti v. Pennsylvania, Bw 8. , , (Rehnquist, J.,

dissenting) a,” no useful purpose would be

served by any tabulation of the position which each of the

Justices took in any or all of the cases in which this subject

was discussed. A reading of all the cases suggests to us that

the meaning of the Sixth Amendment's jury trial provision —

and perhaps also the specific instances of its application to

the States — continues to be in flux. In both Williams v.

Florida, supra, v. Oregon, supra, for example, the

Supreme Court rejected what had been traditional interpretations

of the Sixth Amendment jury trial provision in the Federal Ccurts

by holding that that clause did not require as a constitutional

matter in State or Federal Courts either a twelve person jury or

a unanimous verdict of guilty in certain serious criminal cases.

In doing so the court in effect reversed several of its prior cases.

See, €.4e, Thompson v. Utah, 170 U. Se 343 (1&98)3 Maxwell v. Dow,

176 U. Se 581, 586 (1900); Andres v. United States, 333 U. S.

740, 746-749 (1948). Cf. Duncan v. Louisiana, supra, at

158-159, ne 30, set forth in fn. 9 above.

It is clear that the Supreme Court is aware of the

existence in several States of two-tier court systems such

as we have in Massachusetts for the trial of less serious

Criminal offences, as the cited footnote from the Duncan case

indicates. See Williams v. Florida, 399 U. S. 78, 137, 139,

141-143 (Harlan J., concurring in result) (1970); Colten v.

Kentucky, 407 Ue. Se 104, 113-114 (1972). Indeed, in the

Colten case, ide at 112-120, the court examined such

systems at some length, setting forth the justifications for

them offered by the States (id. at 114), and discussing

what apparently was its own view of their advantages (id.

7 —_-

at 118-119) Vn light of these cases and of the highly

“We are not persuaded, however, that the Kentucky

arrangement for dealing with the less serious offenses

disadvantages defendants any more or any less than trials

conducted in a court of general jurisdiction in the first

instance, as long as the latter are always available.

Proceedings in the inferior courts are simple and speedy e« e« ee

Such proceedings offer a defendant the opportunity to learn

about the prosecution's case and, if he chooses, he need not

revea!

is own. he may also plead guilty without a trial and

promptly secure a de novo trial in a court of general criminal

jurisdiction. « « « rhe otate has no such options. Should it

not prevail in the lower court, the case is terminated, whereas

the defendant has the chcice of berinning anew. In reality his

choice

are to accept the decision of the judge and the sentence

uneertain state of the law on the subject, we du not believ

that we are required to conclude either (a) that the Sixth

Anendment would be interpreted at the present tine by the

Supreme Court to require a trial by jury in the first insta

for all criminal offences, Callan v. Wilson, 127 Ue. S. 549

(i De or (b) that even if that court did reaffirm this

rule of the Callan case with respect to the Federal Courts,

it would apply such a requirement in equal fashion to the

States. In sun, we believe that the Commonwealth's two-tie

court system satisfies the jury trial requirement of the

Sixth Amendment as applied to the States through the Fourte

Amendment.

nce

enth

imposed in the inferior court or to reject what in effect i

no more than an offer in settlement of his case and seek th

to be determined by the full record made in that court. We

cannot say that the Kentucky trial de novo system, as such,

unconstitutional.”

NS we note that although this holding of Callan v. Wils

supra, has been cited by the Supreme Court in a few of the

Opinions discussed above, the court has not indicated any

eitner aifirmative or negative, about it. See Duncan v. Louisian:

dement of judge or jury in the superior court, with sentence

supra, at 158=-159, fn. 39; Williams ve Florida, 397 U. S. 75, 137

—e————_—

(1970) (i!arlan, J., concurring in judrment).

V7 els Cv A mel 1a Ve L iCeV, 372 F. Supp. 109, lll, 112-il

(Tauro, J. dissenting) (D. Mass. three-judge court, 1974),

per ji e

We are aware that in State v. Holliday, 1O9 R. I. 9Y3,

je 14, (1971), the Supreme Court of Rhode Island reached th

{ te ¢ c'usion fr rs, tut fur the reasons discuss:

ve we do not agree with that court's opinion. Cf. Manns

Koontz 1 Fe 2d ith, 1345 (4th Cir. *971)3 Manns v.

( UL! ’ Y ae / } { | De * ae. on 4 | j iP 1). 5

ee TT ee) 7 ;

Je ’ Pe dy oa DP on ist Cir, |! ly

a we 86 ee

““}/j}-e@

¢*

2. Fifth Amendme..t Claim. The plaintiff also contends

that the two-tier court system violates the double jeopardy

Clause of the Fifth Amendment, made applicabie to the States

through the Fourteenth. Benton v. Maryland, 395 U. Se 78h

(1969). The principal thrust of his argument relates to the

possible imposition of a higher sentence by the Superior

Court in a de novo trial held on an appeal from the District

Court: he claims first that this "threat of enhanced penalty"

in the Supe*ior Court "chills" a defendant's right to take an

appeal, and, second, that the mere existence of authority in

the Superior Court judge to impose a greater sentence in

itself constitutes a violation of the double jeopardy clause.

The plaintiff's argument is not new “ court. In

Mann v. Commonwealth, 359 Mass. 661 (1971), *% the same contentions

of “chilling effect" (which is essentially a claim of denial

of due process more than of violation of the double jeopard)

clause) and enhanced penalty were raised and were a

against the plaintiff's contention. Id. at - _ ° .

car >

See Lemieux v. Robbins, 414 Fe. 2d 353, 354-356 (1st Cir.

1969), cert. den. 397 U. S. 1017 (1970) (Maine two-tier

court oe The plaintiff sureests these decisions

should not control here because both courts incorrectly

relied on North Carolina v. Pearce, 395 U. S. 711 (1969),

with respect to the double jeopardy claims raised in the

cases before them; it is the plaintiff's position that the

Pearce case, which involved the resentencing of a defendant

who had perfected a successful appeal and had been retried

and ultimately reconvicted, is entirely distinguishabie

from the case at bar. We believe, however, that Colten v.

Kentucky, 407 U. S. 104 (1972), has rejected that position.

NAKs we said in the Mann case, Masse at ; (1971) (Mass.

Adve She pazzed 1022-1029, 1030): “The petitioner complains

that the [two-tier de novo] procedure has a chilling eifect on

nis right of appeal. ‘In answering this question we must have

in mind that a defendant gives up nothing by going to trial in

the district court. e« e « Looking at the total circumstances,

weere the state otrers the defendant a full trial, with full

right of appeal therefrom, in the Superior Court, we do not

think it unreasonable for it to restrict the appeal from the

district court in the sense here complained of. « « « The

state's two step procedure has a legitimate ‘apend

Lemieux ve Roboins, « « « [Supra, at] 355-356. . » » [T]he

Yeasouing in the Lemieux case Is applicable to the instant

case. A defendant not only ‘gives up nothing by going to

trial in the district court' but he actually gains the

distinct advantage of a preview of the prosecution's case

without having to disclose his own, If he is found guilty

he can appeal. If he is found not guilty that is the end of

the case because ‘double jeopardy’ precludes an appeal by the

State."

In the Colten case the defendant was tried, convicted

and fined for disorderly conduct before an inferior court

without a jury pursuant to the Kentucky two-tier court

system for less serious criminal offences. He exercised

his right to “appeal” to a higher court for a trial de novo

before a jury, at which trial he was again convicted and a

higher fine was imposed. Like the plaintiff in the case

vefore us, he argued that the State.two-tier court system

was constitutionally “infirm" because of the judge's power

to impose a higher sentence in the second-tier trial, basing

his argument in part on the Fifth Amendment's double jeopardy

clause. The Supreme Court briefly disposed of his claim:

"Colten's alternative contention is that the double jeopardy

Clause prohibits the imposition of an enhanced penalty upon

reconviction, The Pearce Court rejected the same contention

in the context of that case, 395 U. Se, at 719-720. Colten

urges that his claim is stronger because the Kentucky systen

forces a defendant to expose himself to jeopardy as a price

for securing a trial that comports with the Constitution,

That was, of course, the situation in Pearce, where reversal

of the first conviction was for constitutional error,"

LO7 U. Se at 119.

Despite the plaintiff's assertions to the contrary, it

seems clear that the Colten case is indistinguishable from

the case vefore us and that its rejection oi the double

jeopardy claim governs here,

Disposition.

In accordance with the conclusion reached in par. 4

of the first section of this opinion, an order is to be

the single justice dismissing this petition.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.