# Jurisdictional Statement — Costarelli v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0144%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1975 - **Citation:** 421 U.S. 193 ## Text 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 .See M.G.L. Ch. 278 Sec, 24 set out in the Ap- pendix p. 10. 5 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. 6 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 7 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- 11 10 *faui0jqye sty Ag "Oly °S°N OO Sus0r *°A 7S°N ‘9S0z *30 *S6g ‘puelAZeW °A UOQUSg ‘3uempuaewy YIZTA eYyI JO suoTstTAoid Apaedoef atqnop ayQ Azepun pssaquerzenS 3ysta e pue ‘¢¢Ee pz°v O8z *27k3S *a ABPITIOH *$ *s°n ‘eur]Oae) YIION *A Jaszdo]y ‘quewpuswy yIXTS 2uq JO uotTsTtTAoad [et1aqz Apaads eyQ Aq peaqueizens yysta ec pue ‘OE °UIzZ ‘Col *S°N 16¢ *TeUeTSTNO] *A UPoUNg ‘OHS *S°N LIT SUOSTIA °A UeT[eD SuoT -N3TISUOD auQ OF QUoWpUSUTY YIXTS 9YyI Aq padqUeAeNS AysIA e faduRe JSUT YSATF oya ut Aanf Aq [etaq e& AOF JYANOD sty SseAOW pUe JUePUdzTep sy Sawod MON WIL AUN YOU NOLLON ) tha Vf.89 ’ ITSO) NGHdILS Aidt’ 99 Bre 9 ‘e tf vine L+ a ates HJ ASA SLLISNHOVSSVN JO HLTYSMNOWKOD # “IVNIWNIYO LYUNOD IVdIOINAN NOLSOW ; . ss *yIOdINs peziioyyneun aq 0} TITe2e 4809 BuLMmouy [aA 919y} puv uesty} TITese4Ss09 pres ay} * IoTsey; LO197 b, 82104 TITeie4soy ussajc Advij, pseyoty Rm Udl oust o Aytadoid ay} aiqowojne ur. yun a[QIYeA-101ONL ULR}199 asn_ asa ee 1} I'q ae qtds s Al bh Sod bien 70 Wer Busse g fess -*}8914S Aucaty aT[Vo a}VNpIs asay} Ava orqnd ureiie.— Il } {} q Tequascy jo Avp uqueszes £4uer3 «=: 8}: UO ‘UOJSOG, JO ABO pres BEST COPY AVAILABLE pivs my Aq efIqoulojne pr¥s Jo esn Yyons 1} pip uodn ‘INO ples Jo yIIysIp yetorpnf ay} UIyyIA Pue ‘preseloje uojsog jo APIO ay} 3 Ayuaaes pur poipuny eutu pursnog} suo ploy ano jo ive oq} Ul jo yey} survjdui0d yyVO UO ‘SLLASAHOVSSV}Y dO HLIVAMNOWWOD ) 94} Jo Jyeyeq ur ‘yjoyynG Jo AzyunoD ayy ut ‘uoj}sog JO AID ayy Jo ‘yjoyyng jo Ajunogd ay) uly ‘sseutsng [BUTUTIID Jo UOTJIBSUBI} BY} IO} VOJSOg jo (IQ ptvs ye uaproy ‘NoLsog 40 ALI) AHL JO LUNOD TVdIDIXATY AHL AO SAOITSAL’ AHL OF us BEST GOPY AVAILABLE CARDED JAMA & IGE, . /s tr ao cicb Feo p aN Ba SE NY +’ en a? A? | cit Trb ot aa : sw 4 SS o AS pe 8§ 8\N ; eo pre ae ¢ : f ga 63 3 ¢ 3 5 os ™~ += . ie , an > 2 i 7 x a - we . = ‘ = ol rf t» ad «1 Ht Fs ™~ rm “4 £0 7 g2 a. die lag — “% -\ » °F 2 =" 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 Sn AY gh 18 IRE ‘ ' daeloF el FR 4 dels re : COMMONIWEALTH OF MASSACHUSETTS — ee (\* : , T * ~ yoers J/4 SYFFOLK, MUNICIPAL COURT OF j EG at | Q THE CITY OF BOSTON - Py] . ’ , Ss 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 aie k —T. \TT YN — muoL "i. ie bak amammnma Cc i >} Jit ) fy =F | be ~ pay 2S 7 A\dds 44 WY V4 VY .* We & 4444 Wad . & 244 - Lfi4 s* . ,_ As J ar = YT \ 4 . ctoper ACLiily Aw é ATTY "7 2 720 ~ = ( LV\ « - iI ‘rT? ~~ CTAT + ~ + 7 | 4 , i j hs ¥ . iin Vv dois COUs i'w. Dislil » Pb eiianht - — Vvwe “Arar — ._ -. = as? SCAM . — so ™ | { ) {) Alm J) 4 { } he, Se Jd J ~~ } i hae Q + _r? y~ + . ¥ ac - } . ivwN NW Vali « ws ad 4 . LX AAS L ada . VJV oC oS Viirk . - " . . yurt . . - tr t > . ‘ , . ~ beat : > > aT? wt ry n VTUUL V/s iC aYy Vv a | ?' ai AiXAd sit =. ase eS Fe Paes or : } ~ . - ? i. 7 _+ . YY a es iis }uLr ] mu iv. & AWwilGad mw L-ALCLiCii & eo | 1 » + pay ‘ ArQqumMenht + . a \ y - ; } — ss _~ ad > . —— ' " a+ = 4 4 . ‘ } , ) ¥ ’ ; r Y1it oOuUrel Cit WU AwU Aa wud & if i. Uvowvs . £ Y . o-+ 5 + + » 4 ‘ Ta? } > cm review wsa'l = piswtitUteaA AA Ae Y Wa yW¥iia w& a . ‘ - nviction ina district court! marsh's co sachusetts in which Whitmarsh was tr of Massa 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 Jurisdiction to correct and prevent er- rors and abuses therein if no other i Ww 7 ; . ee . & hh 7 \7 5A 2 In Mann v. Commonweaith, 271 NE 2d 3 ~ , ] \ " a” " = £ . : or - 222 } > Cimnran lawn 4a . — } ; ee the wuUuvl Cire VU UAGaL WVWYUs & YD s+ M.G.L. Ch. 211 Sec. 3 as amended by 1114 of the Acts of 1974 reads in part: The supreme judicial court shall have 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, 3 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 Ww 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 YY 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 a 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 Vv 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 Ff Ae “7 io aay J ©. s.eewt ouperi of the very few cases in ordinary powers un respect to inter! der Ge “— IC Ut ry oO ers ani or Cou f". . L1acCts which ruiin Cc aSSe : (1973), ° and in \Y : , (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 ~ 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 “ : - - 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.” 11 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 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." 24 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. c i) 7 Vv 5 . + --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0144%3A1. Public record. Not legal advice.