Petition — A Juvenile v. Massachusetts

Supreme Court brief1980

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Supreme Court, U. %

80-627 FILED *

CT 17 1080

No MICHAEL RODAK, JR., CLER'

In the

Supreme Court of the United States.

Ocroser Term, 1980.

A JUVENILE,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the

Supreme Judicial Court of Massachusetts.

PeTer L. PuciLosk1,

SUGARMAN, ROGERS,

BarsHAK & COHEN,

73 Tremont Street,

Boston, Massachusetts 02108.

(617) 227-3030

Counsel of Record for

Petitioner

ANTHONY M. DONnIGER,

SUGARMAN, ROGERs,

BarsHAK & COHEN,

73 Tremont Street,

Boston, Massachusetts 02108.

(617) 227-3030

Counsel for Petitioner

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Questions Presented.

1. Is the constitutional protection against Double Jeopardy

as articulated in Burks v. United States, 437 U.S. 1 (1978)

violated by forcing a defendant initially convicted on insuffi-

cient evidence to submit to a second, de novo, trial?

2. Is a two-tier trial system constitutional if it requires a

defendant initially convicted on insufficient evidence to sub-

mit to a second trial?

Table of Contents.

Opinion below

Jurisdiction

Constitutional provision and statute involved

Statement of the case

Reasons for granting the writ

I. Introduction

II. The opinion below places novel and unjustified

constraints on the double jeopardy protection set

forth in Burks v. United States and applied to the

states by the Fourteenth Amendment 6

III. To preclude the application of Burks is to de-

stroy the constitutional underpinning of the two-

tier trial system ll

IV. The issues presented here reflect a potential

conflict between two decisions of this court that

arwwns bdo =

affect at least one half of the states 12

Conclusion 13

Appendix follows page 14

Table of Authorities Cited.

CASEs.

A Juvenile v. Commonwealth, Mass. Adv. Sh. (1980)

1939 4n, 10

Breed v. Jones, 421 U.S. 519 (1975) 6

Burks v. United States, 437 U.S. 1 (1978) passim

ii TABLE OF AUTHORITIES CITED.

Commonwealth v. Crosby, Mass. App. Ct. Adv. Sh.

(1978) 1104 6

Gallinaro v. Commonwealth, 362 Mass. 728 (1973) 7n

Gibson v. Commonwealth, Mass. Adv. Sh. (1980) 1933

2n, 4, 5n, 10

Green v. United States, 355 U.S. 184 (1957) 10

Greene v. Massey, 437 U.S. 19 (1978) 4,5

Ludwig v. Massachusetts, 427 U.S. 618 (1976) 6, 11, 12

Lydon v. Commonwealth, Mass. Adv. Sh. (1980) 1915 passim

United States v. Ball, 163 U.S. 662 (1896) 11

STATUTORY PROVISIONS.

Fifth Amendment, United States Constitution 2

Double Jeopardy Clause passim

28 U.S.C. § 1257(3) 2

Acts of 1978, ch. 478 6n

Mass. G. L. c. 119

§ 55A 6n

§ 56 2,6,9

Mass. G. L. c. 211

§3 4

Mass. G. L. c. 266

§ 49 3

§ 60 3

Mass. G. L. c. 277

§47A 6

Alabama Code Ann. § 12-22-110 (1975) 12n

Arizona Rev. Stat. Ann. §§ 22-371 et seg. (1975 and

Supp. 1979) 12n

TABLE OF AUTHORITIES CITED.

Arkansas Stat. Ann. §§ 44-501, 509 (1977)

Colorado Rule Crim. Proc. 37(f)

Georgia Code Ann. §§ 6-501 (1975)

Indiana Stat. Ann. § 33-10.1-5.9 (Supp. 1980)

Kansas Stat. Ann. §§ 22-3610 et seq. (1974)

Maryland Ann. Code, §§ 12-401 et seq. (1980)

Michigan Stat. Ann. § 28.1226 (1978)

Mississippi Code Ann. § 99-35-1 (1972)

Missouri Sup. Ct. Rule 30.33 (1980)

Montana Rev. Code Ann. § 95-2005 (1947 and Supp.

1977)

Nebraska Rev. Stat. § 25-1929; § 29-610.01 (1979)

Nevada Rev. Stat. §§ 189.010 et seq.

New Hampshire Rev. Stat. Ann. §§ 502-A:11-12, 592-A

(1976)

New Jersey Rules Crim. Practice 3:23 (1980)

New Mexico Stat. Ann. § 36-15-1, Magistrate Ct., Rule

41, Metropolitan Ct., Rule 71, Municipal Ct., Rule

39 (1978)

North Carolina Gen. Stat. §§ 15A-1431] et seq. (1978)

North Dakota Cent. Code, Rule Crim. P. 37 (1974)

Pennsylvania Rules of Ct., Rules of Crim. P. 63 and

Municipal Ct. (Philadelphia) Rule 6006 et seq. (1980)

Tennessee Rules of Crim. P. 5 (1980)

Texas Code Crim. P., Arts. 44.17, 45.10 (1979)

Virginia Code Ann. §§ 16.1-132, 16. 1-136 (1975)

Washington Rev. Code §§ 3.50, 380 et seq. (Supp.

1980)

West Virginia Code Ann. § 50-5-13 (1980)

12n

13n

In the

Supreme Court of the United States.

Ocrosen TERM, 1980.

A JUVENILE,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the

Supreme Judicial Court of Massachusetts.

The petitioner, a juvenile, respectfully prays that a writ of

certiorari issue to review the judgment of the Supreme Judicial

Court of Massachusetts entered on August 22, 1980.

Opinion Below.

The opinion of the Supreme Judicial Court is reported at

Mass. Adv. Sh. (1980) 1939, N.E. 2d (decided Aug.

22, 1980) and is reproduced in the Appendix to this petition.

The order of the Supreme Judicial Court of Massachusetts

staying the issuance of its rescript order until the filing of and

action upon this petition for a writ of certiorari entered on

September 17, 1980, is also reproduced in the Appendix to this

petition.'

Jurisdiction.

The judgment of the Supreme Judicial Court of Massachu-

setts was entered on August 22, 1980 and this petition is filed

within sixty days of that date. This Court’s jurisdiction is in-

voked under 28 U.S.C. § 1257(3).

Constitutional Provision and Statute Involved.

The Fifth Amendment to the United States Constitution

provides in pertinent part: “nor shall any person be subject

for the same offence to be twice put in jeopardy of life or

cin

Mass. General Laws, c. 119, § 56, as amended through St.

1977, c. 431, § 2, Massachusetts’ de novo appeals statute ap-

plicable to the juvenile petitioner, is set out in pertinent part in

the Appendix to this petition.

' The opinions of the Supreme Judicial Court in Lydon v. Commonwealth,

Mass. Adv. Sh. (1980) 1915 and Gibson v. Commonwealth, Mass. Adv. Sh.

(1980) 1933, the companion cases to that which the juvenile petitioner prays

that this court review, are also set forth in the Appendix to this petition.

Statement of the Case.

The case below came before the Supreme Judicial Court on

the following stipulated facts:

The petitioner, a juvenile, was arraigned on November

28, 1978 on complaints alleging him to be a delinquent child

by virtue of receiving stolen goods, in violation of Mass. G. L.

c. 266, § 60, and possessing burglarious instruments, in viola-

tion of Mass. G. L. c. 266, § 49. The trial of the juvenile in

the district court took place in the judge’s chambers. The

government’s witnesses consisted of the arresting police officer

and three other persons. After the police officer and three

other witnesses were sworn, the officer was directed to stand

and recite what had happened.

The officer testified that he responded to a radio message

and went to an address where he found the juvenile standing

in the company of another man. After speaking to the other

man the officer arrested the juvenile. The officer then began

to testify as to statements made to him by a third person. The

juvenile’s counsel objected on the grounds of hearsay. The

judge overruled the objection and directed the officer to con-

tinue. He again began to testify as to statements made by a

third person; again the juvenile’s counsel objected on the

grounds of hearsay. The judge then asked the officer if the

witnesses about whose statements he was testifying were pres-

ent. The officer indicated they were, and the judge then over-

ruled the second objection and directed the officer to continue.

The officer completed his narrative without testifying to

any personal knowledge of evidence tending to prove the

elements of receiving stolen property. He testified only to

statements made by other witnesses, which hearsay statements

formed the sole basis on which the issue of delinquency with

respect to the charge of receiving stolen property could be

adjudicated. When the officer concluded his testimony the

judge asked the other witnesses jointly if they would cor-

roborate the officer’s testimony; they jointly answered in the

affirmative. The Commonwealth presented no admissible

evidence sufficient to support a finding of delinquency and the

juvenile presented no evidence to the court. On the foregoing

facts the judge found the juvenile to be a delinquent child as to

both charges as set forth in the complaints.

The juvenile’s counsel noted his claim of appeal for trial de

novo in a timely manner. After being arraigned in the Appellate

Division of the Boston Juvenile Court, the appropriate de novo

court, the juvenile filed a motion to dismiss the two complaints

on the grounds that the evidence produced by the government

in the initial bench trial was insufficient as a matter of law to

sustain the findings of delinquency, and that therefore the

Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution and principles enunciated in Burks v.

United States, 437 U.S. 1 (1978) and Greene v. Massey, 42”

U.S. 19 (1978) required entry of a judgment of acquittal. The

de novo court entered an order finding that the initial finding

of delinquency was based on insufficient evidence as a matter

of law, but declined to dismiss the complaints.

The juvenile thereupon petitioned the Supreme Judicial

Court to issue a writ of superintendence pursuant to Mass.

G. L. c. 211, § 3, dismissing the complaints on the grounds

that the juvenile would be placed twice in jeopardy if sub-

jected to a second trial under these circumstances. The case

was reported to the full bench of the Supreme Judicial Court,

and was consolidated for argument with two other similar

cases, Lydon v. Commonwealth, Mass. Adv. Sh. (1980) 1915;

Gibson v. Commonwealth, Mass. Adv. Sh. (1980) 1933.2

*The question reported to the full bench of the Supreme Judicial Court in

the case of A Juvenile v. Commonwealth, Mass. Adv. Sh. (1980) 1939, 1942,

On August 22, 1980, the Supreme Judicial Court ruled in all

three cases that the holding of Burks v. United States, supra,

did not apply to Massachusetts’ de novo appeals system. The

Supreme Judicial Court, in a sharply divided opinion in which

all seven justices of the Court participated, dismissed the peti-

tions for writs of superintendence. On September 17, 1980 the

Supreme Judicial Court granted a stay of the issuance of the

rescript order pending the filing of, and action upon, this peti-

tion for a writ of certiorari.*

Reasons for Granting the Writ.

I. INTRODUCTION.

The decision below is in direct conflict with this Court’s

decisions in Burks v. United States, 437 U.S. 1 (1978) as ap-

plied to the states in Greene v. Massey, 437 U.S. 19 (1978). It

imposes extraordinary and entirely novel constraints on the

constitutional protection against being placed twice in jeop-

ardy for the same offense as annunciated in Burks v. United

States, supra, in all cases arising under Massachusetts’ two-tier

trial system, and under the de novo systems which exist in

some form in one-half of the states. Moreover, if Burks v.

n.4 was: “Whether the juvenile’s constitutional right not to be twice put in

jeopardy for the same offense would be violated if he were required to stand

trial de novo in the Appellate Division of the Boston Juvenile Court on two

charges as to which the admissible, nonhearsay evidence presented by the

Commonwealth thereon in the prior hearing in the juvenile session of the

district court was not sufficient to support a finding of guilty beyond a

reasonable doubt. See Burks v. United States, 437 U.S. 1 (1978).”

*The defendants in Lydon, supra, here sought and have been granted, a

similar stay of rescript, and are expected to file a petition with this Court.

The defendants in Gibson have petitioned the Supreme Judicial Court for a

rehearing.

United States, supra, does not apply to Massachusetts’ de novo

system, then the very rationale of the system set forth in Lud-

wig v. Massachusetts, 427 U.S. 618 (1976) has been under-

mined, and the system must be declared unconstitutional.

I]. THE Opinion BELOw PLaces NOVEL AND UNJUSTIFIED CoNn-

STRAINTS ON THE DOUBLE JEOPARDY PROTECTION SET FORTH

iN Burks v. United States AND APPLIED TO THE STATES BY THE

FOURTEENTH AMENDMENT.

At the time of the trial of this action on December 19, 1978,

the de novo system of criminal appeals required the juvenile

first to have a delinquency hearing, the equivalent of an adult

trial, before a judge without a jury. Mass. G. L. c. 119, § 56,

as amended through St. 1977, c. 431, § 2. Upon being ad-

judicated a delinquent child, he then had the right to appeal

and obtain a de novo jury trial; he could not, however, obtain

a jury trial in the first instance. Id.‘

The juvenile petitioner was found delinquent at the initial

bench trial where jeopardy clearly attached. Breed v. Jones,

421 U.S. 519 (1975); Commonwealth v. Crosby, Mass. App.

Ct. Adv. Sh. (1978) 1104. The juvenile timely claimed his

right to appeal and moved to dismiss the complaints, Mass.

G. L. c. 277, § 47A, and asserted his Double Jeopardy Claim

*The aforesaid system was substantially the same as that examined by this

Court in Ludwig, supra. The Massachusetts de novo appeals system for the

adjudication of criminal complaints against both juveniles and adult

criminal offenders was significantly amended by Chapter 478 of the Acts of

1978. Under the new procedure, a defendant may elect to have a jury trial

in the first instance or he may elect to have a bench trial prior to a de novo

jury trial. Mass. G. L. c. 119, § 55A. In the first six months that this pro-

cedure was in effect, only 9% of the defendants were tried before a jury in

the first instance. Lydon, supra, 1918 n.5.

prior to the commencement of the second trial. Although the

de novo court found that the evidence presented at the first

trial was insufficient as a matier of law to support the findings

of delinquency, it denied the juvenile’s motion to dismiss and

ordered a new trial. Upon the juvenile’s application to the

Supreme Judicial Court for a writ of superintendence, that

court was squarely presented with the question of whether the

Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution, as interpreted by this Court in

Burks v. United States, supra, was applicable to Massachu-

setts’ de novo system of criminal appeals.» The Supreme

Judicial Court held that urks v. United States, supra, was ir-

relevant to the two-tier trial system. Petitioner strenuously

disputes that holding.

In Burks v. United States, supra, this Court held that the

only remedy for a conviction based upon insufficient evidence

was a judgment of acquittal. “[O]nce the reviewing court has

found the evidence legally insufficient, the only ‘just’ remedy

available for that court is the direction of a judgment of ac-

quittal.” Jd. at 18. The Burks Court distinguished between

reversals based on trial error and those based on evidentiary

insufficiency; in the former case the Double Jeopardy Clause is

not a bar to retrial, whereas in the latter case it is. Id. at 15.

Burks v. United States, supra, arose upon the appeal of a

conviction after a jury trial, and not in a two-tier trial de novo

setting. The issue presented to the Supreme Judicial Court by

the instant case and its companions was whether the Massa-

chusetts system of trial de novo criminal appeals somehow in-

sulates the lower courts of Massachusetts from the Double

5 The Constitution of the Commonwealth provides no protection against

Double Jeopardy, although the doctrine has been held to be part of the com-

mon law of Massachusetts. Gallinaro v. Commonwealth, 362 Mass. 728

(1973).

Jeopardy provisions of the Fifth Amendment as articulated in

Burks v. United States, supra. It is clear that, if the petitioner

could seek review of the lower court’s findings of delinquency,

Burks v. United States, supra, would mandate that such an ap-

pellate court reverse the findings and order that a judgment of

acquittal be entered. However, the Massachusetts system per-

mits no defendant initially convicted on insufficient evidence

to obtain such review. As the opinion of the Supreme Judicial

Court states: “Under the two-tier system as it is designed to

operate, no court would ever consider this issue,” Lydon,

supra, at 1919. (Emphasis added.)

That no court would ever consider the issue, however, does

not mean that the offense to the Constitution thereby evapo-

rates. Whether or not defendant has an avenue to seek review

of the evidentiary sufficiency of the initial conviction, the

Double Jeopardy Clause is violated if he is required to submit

to retrial. As this Court stated in Burks:

The Double Jeopardy Clause forbids a second trial for

the purpose of affording the prosecution another oppor-

tunity to supply evidence which it failed to muster in the

first proceeding. Burks, supra, at 11. (Footnote

omitted.)

The rationale of Burks in prohibiting retrial after appellate

review of a jury conviction is clearly set forth:

Moreover, such an appellate reversal means t’ the

government’s case was so lacking that it shoula » »« have

even been submitted to the jury. Since we necessarily af-

ford absolute finality to a jury’s verdict of acquittal — no

matter how erroneous its decision — it is difficult to con-

ceive how society has any greater interest in retrying a

defendant when, on review, it is decided as a matter of

law that the jury could not properly have returned a ver-

dict of guilty. Burks, supra at 16. (Emphasis supplied.)

Similarily, where the Government’s case is so deficient at

the initial bench trial that the court could properly return a

finding only of not guilty, there is no societal interest in forcing

the defendant improperly convicted to undergo a retrial. The

Double Jeopardy Clause therefore demands that a defendant

so convicted receive an entry of acquittal, and the two-tier

trial system must provide for such a resolution. “To hold

otherwise would create a purely arbitrary distinction between

those in petitioner’s position and others who would enjoy the

benefit of a correct decision by the District Court.” Jd. at 11,

citing Sumpter v. DeGroote, 552 F.2d 1206, 1211-1212 (7th

Cir. 1977).

The rationale employed by the majority of the Supreme

Judicial Court in refusing to apply the Burks doctrine to the

Massachusetts de novo system directly contradicts the central

holding of Burk: v. United States, supra, and its explicit

language. The majority opinion contends that when a

criminal defendant “voluntarily elects” to have a bench trial,

reserving his right to a de novo jury trial, he must then accept

the “consequences” of the two-tier procedure. Lydon v. Com-

monwealth, Mass. Adv. Sh. (1980) 1915, 1924. By this argu-

ment the majority treats the choice of a bench trial and subse-

quent de novo trial as a waiver of any Double Jeopardy claim.

Insofar as the juvenile was tried under the “old” de novo

system in which he had no choice but to submit to an intitial

bench trial before receiving a de novo jury tria!, Mass. G. L.

c. 119, § 56, as amended through St. 1977, c. 431, § 2, such

argument is simply inapplicable. However, even under the

new de novo system the majority’s rationale is contrary to that

enunciated in Burks v. United States insofar as Burks held that

[I]t makes no difference that a defendant has sought a

new trial as one of his remedies, or even as the sole

remedy. It cannot be meaningfully said that a person

“waives” his right to a judgment of acquittal by moving

for a new trial. 437 U.S. at 17.

The dissent in A Juvenile v. Commonwealth, Mass. Adv.

Sh. (1980) 1939, and its two companion cases, Lydon v. Com-

monwealth, Mass. Adv. Sh. (1980) 1915; Gibson v. Common-

wealth, Mass. Adv. Sh. (1980) 1933, points this out and fur-

ther argues that a waiver of rights under the Double Jeopardy

Clause, like a waiver of other constitutional rights, must be

knowing and voluntary. Lydon v. Commonwealth, supra, at

1929-1930 (Liacos J., dissenting). See also Green v. United

States, 355 U.S. 184, 191 (1957). There is no provision under

either de novo system that a defendant understand he is giving

up his right not to be tried a second time after being convicted

on evidence insufficient as a matter of law.

The Court has stated:

where the Double Jeopardy Clause is applicable, its

sweep is absolute. There are no “equities” to be bal-

anced, for the Clause has declared a constitutional

policy, based on grounds which are not open to judicial

examination. Burks, supra, at 11, n.6.

This absolute sweep, as enunciated in Burks, cannot be ob-

viated merely because the Commonwealth chooses not to have

a forum for its review.

III. To PrRecLUDE THE APPLICATION OF Burks 1s TO Destroy

THE CONSTITUTIONAL UNDERPINNING OF THE TWwo-TIER

TRIAL SYSTEM.

Burks v. United States recognizes two classes of cases result-

ing from appellate reversal of a conviction; the first, arising

from trial error, permits retrial, while the second, resulting

from evidentiary insufficiency, “nust result in acquittal. Lud-

wig v. Commonwealth, 427 U.S. 618 (1976), acknowledges

the constitutionality of the two-tier system only insofar as an

appeal of the initial conviction would result in a new trial:

A defendant who elects to be tried de novo in Massachu-

setts is in no different position than is a convicted defend-

ant who successfully appeals on the basis of the trial

record and gains a reversal of his conviction and a re-

mand of his case fur a new trial. Under these circum-

stances, it long has been clear that the State may

reprosecute. United States v. Ball, 163 U.S. 662 (1896).

The only difference between an appeal on the record and

an appeal resulting automatically in a new trial is that a

convicted defendant in Massachusetts may obtain a

“reversal” and a new trial without assignment of error in

the proceedings at his first trial. Nothing in the Double

Jeopardy Clause prohibits a State from affording a de-

fendant two opportunities to avoid conviction and secure

an acquittal. Jd. at 631-632. (Emphasis added.)

Burks v. United States, swpra, sade clear that where a con-

viction is reversed because it is not supported by sufficient

evidence, the rule of United States v. Ball, 163 U.S. 662 (1896)

is inapplicable and the Double Jeopardy Clause will be offend-

ed by a retrial.

Ludwig does not permit de novo retrial in those cases in

which an appellate finding for the defendant must necessarily

result in an acquittal. To permit the de novo retrial system to

operate in blind disregard of those instances where any retrial

is constitutionally impermissible is to render such a system

violative of the Fifth Amendment in a way that was not sug-

gested in Ludwig and such a system cannot then withstand

constitutional scrutiny.

IV. Tue Issues PRESENTED HERE REFLECT A POTENTIAL CON-

FLICT BETWEEN Two DECISIONS OF THIS CouRT THAT AFFECT

AT Least ONE HALF OF THE STATES.

The Supreme Judicial Court’s refusal to apply the Double

Jeopardy principles enunciated in Burks v. United States,

supra, to Massachusetts’ de novo system of criminal appeals,

has far-reaching implications for the administration of

criminal justice in the Commonwealth and throughout the

United States. In the first half year of operation of the “new”

de novo system in Massachusetts 1,593 defendants were first

tried without a jury, Lydon, supra, at 1918, n.5, and were

therefore placing their Double Jeopardy rights at risk. Fur-

ther, this refusal to apply Burks places the whole constitu-

tional underpinning of the de novo system in jeopardy. Ap-

proximately one-half of all the states operate some form of a

two-tier de novo appeal system.® While no case could be

*See, e.g., Ala. Code Ann. § 12-22-110, 113 (1975); Ariz. Rev. Stat. Ann.

§§ 22-371 et seq. (1975 and Supp. 1979); Ark. Stat. Ann. §§ 44-501, 509

(1977); Colo. Rule Crim. Proc. 37(f); Ga. Code Ann. § 6-501 (1975); Ind.

Stat. Ann. § 33-10.1-5.9 (Supp. 1980); Kan. Stat. Ann. §§ 22-3610 et seq.

(1974); Md. Ann. Code, §§ 12-401 et seq. (1980); Mich. Stat. Ann.

§ 28.1226 (1978); Miss. Code Ann. § 99-35-1 (1972); Mo. Sup. Ct. Rule

30.33 (1980); Mont. Rev. Code Ann. § 95-2005 (1947 and Supp. 1977); Neb.

Rev. Stat. § 25-1937; § 29-610.01 (1979); Nev. Rev. Stat. §§ 189.010 et seq;

found in another de novo jurisdiction which considered the

issues presented by this petition, it is inevitable that these ques-

tions will arise in the other de novo jurisdictions, and will

therefore present the specter of additional rulings in conflict

with the Fifth and Fourteenth Amendments and the decisions

of this Court.

Conclusion.

For the reasons hereinbefore set forth, a writ of certiorari

should issue to review the judgment and petition of the

Supreme Judicial Court of the Commonwealth of Massachu-

setts.

Respectfully submitted,

PETER L. PUCILOSKI,

SUGARMAN, ROGERS, BARSHAK

& COHEN,

73 Tremont Street,

Boston, Massachusetts 02108.

(617) 227-3030

Counsel of Record for

Petitioner

ANTHONY M. DONIGER,

SUGARMAN, ROGERS, BARSHAK

& COHEN,

73 Tremont Street,

Boston, Massachusetts 02108.

(617) 227-3030

Counsel for Petitioner

N.H. Rev. Stat. Ann. §§ 502-A:11-12, 592-A (1976); N.J. Rules Crim. Prac-

tice 3:23 (1980); N.M. Stat. Ann. § 36-15-1, Magistrate Ct., Rule 41,

Metropolitan Ct., Rule 71, Municipal Ct., Rule 39 (1978); N.C. Gen. Stat.

§§ 15A-1431 et seq. (1978); N.D. Cent. Code, Rule Crim. P. 37 (1974); Pa.

Rules of Ct., Rules of Crim. P. 63 and Municipal Ct. (Philadelphia) Rule

6006 et seq. (1980); Tenn. Rules of Crim. P. 5 (1980); Tex. Code Crim. P.,

Arts. 44.17, 45.10 (1979); Va. Code Ann. §§ 16.1-132, 16.1-136 (1975);

Wash. Rev. Code §§ 3.50, 380 et seq. (Supp. 1980); W.Va. Code Ann.

§ 50-5-13 (1980).

Mass. Adv. Sh. (1980) la 1939

A Juvenile v. Commonwealth.

A JUVENILE vs. COMMONWEALTH.

Suffolk. May 6, 1980. — August 22, 1980.

Present: Hennessey, C.J., Quirico, Braucnen, Kaptan, Witkins, Liacos, & Asrams, JJ.

Constitutional Law, Double jeopardy. Supreme Judicial Court, Superin-

tendence of inferior courts. Practice, Criminal, “Two-tier” court sys-

tem.

Civi ACTION commenced in the Supreme Judicial Court

for the county of Suffolk on March 1, 1979.

The case was reported by Abrams, J.

Anthony M. Doniger for the petitioner.

Michael J. Traft, Assistant District Attorney, for the

Commonwealth.

Richard J. Hayes, William J. Leahy, Martin R. Rosenthal

& Brownlow M. Speer, for the Massachusetts Defenders

Committee, amicus curiae, submitted a brief.

Wixkins, J. This is the third of three cases decided today

concerning the possible application of double jeopardy prin-

ciples expressed in Burks v. United States, 437 U.S. 1 (1978),

to the two-tier trial system used for the disposition of crimi-

nal and juvenile cases in the District, Municipal, and Juven-

ile Courts in the Commonwealth.

Here, we are concerned with delinquency proceedings

against a juvenile that were first heard at a bench trial in

December, 1978. The juvenile was found guilty on charges

of receiving stolen goods and of possession of burglarious in-

struments. He claims he was entitled to judgments of ac-

quittal in the initial hearing before the judge and, accord-

ingly seeks relief under the general superintendence power

of this court (G. L. c. 211, § 3), asserting his constitutional

right not to be placed twice in jeopardy.. The case comes

before us on a reservation and report by a single justice of

1940 2a Mass. Adv. Sh. (1980)

A Juvenile v. Commonwealth.

this court. The parties have filed a stipulation of facts and

certain other stipulations. Following our holding in Gibson

v. Commonwealth, ante (1980),* we hold that the

juvenile has no valid double jeopardy claim.

At the time of the trial of this case, on December 19, 1978,

the old two-tier system was in effect.' Under that proce-

dure, the hearing in the first instance was required to be

before a judge without ajury. G. L.c. 119, § 54, as amend-

ed through St. 1973, c. 1073, § 7. A child adjudged a delin-

quent had the right to appeal and obtain a jury trial,* but he

could not obtain a jury trial in the first instance. G. L.

c. 119, § 56, as amended through St. 1977, e431, § 2.

The fifteen-year-old juvenile was arraigned in the Munic-

ipal Court of the West Roxbury District (West Roxbury

Court) on two complaints alleging him to be a delinquent

child by reason of receiving stolen goods (G. L. c. 266, § 60)

and by reason of possession of burglarious instruments

(G. L. c. 266, § 49). On December 19, 1978, the matters

were heard in the judge’s chambers. The proceedings were

not recorded.* The Commonwealth was not represented by

counsel. The juvenile was accompanied by his mother and

by counsel. In addition to court personnel, a Boston police

* Mass. Adv. Sh. (1980) 1933.

' The system in effect today for the trial of a child complained against as

a delinquent in a District or Juvenile Court is substantially the same as the

two-tier system in effect for an adult complained against in a District or

Municipal Court. Compare G. L. c. 119, § 55A, inserted by St. 1978,

c. 478, § 56, effective January 1, 1979 (see St. 1978, c. 478, § 343), with

G. L. c. 218, §§ 26A and 27A, inserted by St. 1978, c. 478, §§ 188, 189.

Any double jeopardy challenge to the present two-tier system for juveniles

is controlled by our decision in Commonwealth v. Lydon, ante

(1980) (Mass. Adv. Sh. [1980]) 1915.

?In this case, the appeal was to the Boston Juvenile Court for a trial

before a jury of twelve. G. L. c. 119, § 56, as amended through St. 1977,

c. 431, § 2.

3 District/Municipal Cts. Supp. R. Civ. P. 114 (1975), requires the elec-

tronic recordation of all “courtroom proceedings” in cases heard in a

juvenile session, subject to the availability and functioning of the ap-

propriate recording devices. We express no opinion on whether the hear-

ing in this matter was, or should have been, a “courtroom proceeding.”

Mass. Adv. Sh. (1980) 3a 1941

A Juvenile v. Commonwealth.

officer and three witnesses for the Commonwealth were pres-

ent. The police officer and the three witnesses were sworn.

The police officer was directed to stand and to tell what

happened. The officer stated that, responding to a radio

message, he went to an address in Roslindale and placed the

juvenile under arrest. He found a screwdriver and a piece

of coat hanger on the juvenile. When the police officer

began to recite statements made to him by a Commonwealth

witness, defense counsel objected on the ground of hearsay.

The objection was overruled and the officer again testified

to statements made by a Commonwealth witness. Defense

counsel again objected. The judge inquired if the witnesses

whose statements formed the basis of the officer’s testimony

were in the room. When the officer indicated that they

were, the judge directed the officer to continue. The officer

did not testify to personal knowledge of evidence tending to

prove the elements of receiving stolen property, but did tes-

tify to hearsay statements which constituted the only evi-

dence on which the issue of guilt of receiving stolen property

could be based. What the entire evidence was on the

charge of possession of burglarious instrume.ts is not dis-

closed by the stipulation. At the conclusion of the officer’s

testimony, the judge asked the remaining Commonwealth

witnesses, jointly, if they could corroborate the officer’s

testimony. They answered jointly in the affirmative. The

parties have stipulated that “[t]he judge declined to take

testimony from these witnesses because he felt such testi-

mony was unnecessary.” The juvenile offered no evidence.

The judge found the juvenile a delinquent child on both

charges, and committed him to the Department of Youth

Services. The juvenile claimed a trial de novo.

After the juvenile was arraigned in the Appellate Division

of the Boston Juvenile Court, his counsel moved to dismiss

the complaints, alleging that double jeopardy principles

barred a second trial because there was no competent evi-

dence of any element of the alleged offenses and the only

evidence was inadmissible hearsay evidence to which there

had been timely objection. The judge who heard the mo-

1942 4a Mass. Adv. Sh. (1980)

A Juvenile v. Comme twealth.

tion declined to dismiss the complaints but, because he con-

cluded that there was insufficient evidence at the first trial

to justify a finding of delinquency and because the juvenile

was denied an opportunity to confront and cross-examine

witnesses, he remanded the cases to the West Roxbury

Court for a retrial. Defense counsel then filed a complaint

in the single justice session of this court seeking relief under

the court’s general superintendence power. The single jus-

tice stayed proceedings in the West Roxbury Court pending

consideration of the complaint and reserved and reported

the entire case to this court.‘

As we have said, the juvenile’s double jeopardy argument

must fail. His situation is not significantly different from

‘The reservation and report states that the following is the principal

question raised: “Whether the juvenile’s constitutional right not to be

twice put in jeopardy for the same offense would be violated if he were re-

quired to stand trial de novo in the Appellate Division of the Boston Ju-

venile Court on two charges as to which the admissible, nonhearsay evi-

dence presented by the Commonwealth thereon in the prior hearing in the

juvenile session of the district court was not sufficient to support a finding

of guilty beyond a reasonable doubt. See Burks v. United States, 437 U.S.

1 (1978).”

The parties have stipulated that the order remanding the case to the

West Roxbury Court “is not a matter placed in issue by the present pro-

ceeding.” We construe this statement to be an indication by the juvenile

that, if his motion to dismiss was rightly denied, he favors a new pro-

ceeding in the West Roxbury Court rather than an immediate jury trial in

the Appellate Division of the Boston Juvenile Court. Although the

juvenile disclaims any challenge to the remand of the proceedings for a

new bench trial, he cannot be conceding that those new proceedings

would cure a violation of his double jeopardy rights. If double jeopardy

rights are applicable to this case, they bar a rehearing in the West Rox-

bury Court just as they bar a jury trial in the Appellate Division of the

Boston Juvenile Court.

Double jeopardy considerations aside, it seems clear that the procedure

followed in the West Roxbury Court failed to afford the juvenile rights to

which he was entitled. Special Dist. Ct. R. 205 (1976), one of several ap-

plicable to juvenile proceedings, requires that a summons issued on a com-

plaint against a child shall have a notice attached to it which advises the

juvenile, among other things, that “(4) . . . you have a right. . . to re-

quire the complainant to prove any and all charges made against you”

and (5) You have the right to be confronted by the person making any ac-

cusation against you and to cross-examine that person and any other per-

sons called to testify against you.”

Mass. Adv. Sh. (1980) 5a 1943

A Juvenile 0. Commonwealth.

the defendant’s in Gibson v. Commonwealth, supra. For

the reasons stated there, a double jeopardy claim based on

the principles of Burks v. United States has no validity in

our former two-tier trial system.

We need not pass on the question whether the evidence at

the bench trial was sufficient to warrant the findings of de-

linquency. We note, however, that even if a finding of de-

linquency or guilt is warranted solely on the basis of inad-

missible hearsay, it is far from clear that a retrial would be

barred. The Burks opinion stresses a distinction “between

reversals due to trial error and those resulting from eviden-

tiary insufficiency .... [I]t is important to consider care-

fully the respective roles of these two types of reversals in

double jeopardy analysis.” Burks v. United States, supra at

15. “In short, reversal for trial error, as distinguished from

evidentiary insufficiency, does not constitute a decision to

the effect that the government has failed to prove its case.”

Id. The Court in the Burks case lists as one category of trial

error “the incorrect receipt or rejection of evidence.” Id.

The opinion does not state whether “trial error” alone or

“evidentiary insufficiency” as well is involved when the only

evidence in support of proof of an element of a crime is evi-

dence that was improperly admitted. The Supreme Court

left this question open in Greene v. Massey, 437 U.S. 19, 26

n.9 (1978), a case decided the same day as the Burks case.

We need not answer this question in order to decide this

case.®

5Since the decision in the Greene case, several courts have been pre-

sented with this question. Some courts have held summarily, without any

discussion of the reasons for their rulings, that a retrial is barred when evi-

dence presented to the trier of fact was sufficient to warrant a conviction

but the properly admitted evidence was not. Matter of M.L.H., 399 A.2d

556, 558-559 (D.C. 1979). State v. Bannister, 60 Hawaii 658, 660-661

(1979). State v. Abel, 600 P.2d 994. 999 (Utah 1979). However, a

number of courts have given careful co.sideration to this issue, have artic-

ulated their views in well-reasoned opinions, and have concluded that

retrial is permissible in such circumstances. United States v. Mandel, 591

F.2d 1347, 1373-1374 (4th Cir. 1979). United States v. Block, 590 F.2d

535, 543 (4th Cir. 1978). Hall v. State, 244 Ga. 86, 93-94 (1979). Irons

v. State, Ind. : (1979) (397 N.E.2d 603, 605-606 [1979]).

1944 6a Mass. Adv. Sh. (1980)

A Juvenile vo, Commonwealth.

The petition for relief under G. L. c. 211, § 3, should be

dismissed.

So ordered.

Liacos, J. (dissenting, with whom Abrams, J., joins). I

respectfully dissent for the reasons stated in my opinion in

Commonwealth v. Lydon, ante. The record does not make

clear the grounds for the judge’s decision in the Boston Ju-

venile Court to remand to the West Roxbury Court. The

Boston Juvenile Court should be dirccted to rule on the suf-

ficiency of the evidence. If the judge determines that the

first trial involved mere trial error, retrial should not be

barred. If, on the other hand, the motion judge determines

that there was a failure of proof at the first hearing, any fur-

ther proceedings on the same charges should be barred.

Mulry v. State, Ind. App. : (1980) (399 N.E.2d 413, 419

[1980]}). State v. Boone, 284 Md. 1, 15-17 (1978). DiPasquale v. State,

43 Md. App. 574, 579 n.* (1979). Ex parte Duran, 581 S.W.2d 683, 684-

686 (Tex. Crim. 1979). State v. Frazier, W.Va. ; (1979) (252

§.E.2d 39, 53 [1979)).

In this Commonwealth, prior to the Burks case, this court ordered the

entry of a judgment of not guilty where a defendant was charged with

possession of a narcotic drug, and we concluded that the drug had been

seized in violation of the defendant's constitutional rights. Common-

wealth v. Silva, 366 Mass. 402, 410-411 (1974). In that case, a new trial

was not warranted, although the evidence admitted at the trial supported

the conviction, because it was clear that after suppression of the evidence

the Commonwealth could not possibly prove its case in a new trial.

More recently, in a case decided after the Burks and Greene decisions,

this court ordered the entry of judgments of not guilty because, disregard-

ing certain inadmissible evidence, there was no evidence on the record

that the defendants had committed the crime. Commonwealth v. Fun-

ches, Mass. , - (1979) (Mass. Adv. Sh. [1979] 2559, 2571-

2572). We noted, citing the Burks and Greene cases, that the Common-

wealth had had a fair opportunity to offer whatever proof it could assem-

ble and that, if the inadmissible evidence had been struck, the defendants’

motions for directed verdicts should have been allowed. /d. at (Mass.

Adv. Sh. [1979] at 2572). From a consideration of the evidence offered in

the Funches case, we think it clear that the Commonwealth had no rea-

sonable prospect of filling in the gap in its proof and thus the circum-

stanc ~ were, in effect, the same as in the Silva case, where no cure for the

failvy of proof could be devised at a second trial.

Mess. Adv. Sh. (1980) Ta 1915

Lydon v. Commonwealth.

MICHAEL Lypon & another! vs. CoMMONWEALTH.

Suffolk. May 6, 1980. — August 22, 1980.

Present: Hennessey, C.J., Quinico, Braucnen, Kaptan, Wirxins, Liacos, & Asaams, JJ.

Constitutional Law, Double jeopardy. Supreme Judicial Court, Superin-

tendence of inferior courts. Practice, Criminal, “Two-tier” court sys-

tem.

Civit ACTION commenced in the Superior Court for the

county of Suffolk on February 5, 1980.

The case was reported by Wilkins, J.

Bonnie Spaccarelli Hannon (Eva S. Nilsen with her) for

Michael Lydon.

Kenneth D'Arcy for Robert McDonald.

Michael J. Traft, Assistant District Attorney, for the

Commonwealth.

Richard J. Hayes, William J. Leahy, Martin R. Rosenthal

¢& Brownlow M. Speer, for the Massachusetts Defenders

Committee, amicus curiae, submitted a brief.

Wikins, J. This petition for relief under the general

superintendence powers of this court (G. L. c. 211, § 3) is

one of three similar cases decided today that raise questions

concerning the application of the principles of Burks v.

United States, 437 U.S. 1 (1978), to criminal cases in which

the accused has had a trial before a judge without a jury (a

bench trial), and, dissatisfied with the result of the bench

trial, has sought a de novo trial before a jury. The petition-

ers, whom we shall call the defendants, argue that the dou-

ble jeopardy clause of the Fifth Amendment to the Consti-

tution of the United States, as construed in Burks v. United

States, supra, requires that the charges against each be dis-

‘Robert McDonald.

1916 8a Mass. Adv. Sh. (1980)

ee Lydon ve. Commonwealth.

missed following his bench trial because the evidence at the

bench trial was insufficient to warrant the convictions.

Under the statutory provisions concerning the trial of

cases in the Municipal Court of the City of Boston (Muni-

cipal Court), each defendant has the right to a jury trial in

the first instance, but the defendants in this case elected in-

stead to have a bench trial, preserving their right to have a

jury trial if they were dissatisfied with the result of the

bench trial. See G. L. c. 218, § 26A, which is set forth in

the margin.? The defendants argued to the judge at their

joint bench trial in the Municipal Court that the evidence

did not warrant their convictions. The judge, however,

found them guilty, and the defendants exercised their statu-

tory right to appeal for a trial by a jury of six. Before the

jury trial commenced, however, the defendants moved in

the Municipal Court’s jury trial session to have the charges

against them dismissed because the evidence at the bench

trial was inadequate to justify their convictions. When this

motion was denied, the defendants filed a petition in the

single justice session of this court seeking relief under G. L.

c. 211, § 3. The single justice stayed the trial of these cases

in the jury session of the Municipal Court, and; accepting

the defendants’ claim that the evidence at the bench trial

did not warrant their convictions, reserved and reported

two questions to the full bench, which are set forth in the

margin.® The first of these questions inquires whether a

* General Laws c. 218, § 26A, inserted by St. 1978, c. 478, § 188, reads

as follows: “Trial of criminal offenses in the Boston municipal court

department and in the divisions of the district court department shall be

by a jury of six, unless the defendant files a written waiver and consent to

be tried by the court without a jury, subject to his right of appeal there-

from for trial by a jury of six pursuant to section twenty-seven A. Such

waiver shall not be received unless the defendant is represented by counsel

or has filed a written waiver of counsel. Such trials by jury in the first in-

stance shall be in those jury sessions designated by said section twenty-

seven A for the hearing of such appeals. All provisions of law and rules of

court relative to the hearing and trial of such appeals shall apply also to

jury trials in the first instance.”

*“1. Is it a denial of a defendant's right not to be placed in double

jeopardy to require him to go through a jury trial, requested by him with-

Mass. Adv. Sh. (1980) 9a 1917

Lydon ov. Commonwealth.

defendant would be denied his right not to be placed in dou-

ble jeopardy if he were required to go through a jury trial,

when the evidence at the bench trial was inadequate to sup-

port his conviction. The second question concerns the pro-

cedural issue whether, assuming the existence of a double

jeopardy claim, a jury-trial judge could or should reconsider

the question of the sufficiency of the evidence which a

bench-trial judge had decided adversely to a defendant.

The issues are important to the effective operation of the

two-tier trial system in effect in the District and Municipal

Courts of the Commonwealth. The present two-tier system

was adopted, effective January 1, 1979, as part of the reor-

ganization of the Commonwealth’s judicial system pursuant

to Chapter 478 of the Acts of 1978, commonly known as the

Court Reorganization Act. In order to achieve a prompt

and efficient disposition of the great number of criminal

complaints filed each year in the District and Municipal

Courts of the Commonwealth, involving relatively minor

crimes, the concept of a bench trial was retained from the

Commonwealth’s earlier two-tier procedure. However, the

Court Reorganization Act introduced a procedure that gave

a defendant the right to a jury trial without the necessity of

a prior bench trial.‘ As we have noted, a criminal defend-

out waiving his rights, when the evidence at the bench trial was insuffi-

cient to warrant a conviction?”

“2. Assuming that a jury trial in such an instance would be a denial of

a defendant's right not to be placed in double jeopardy, may the issue of

the sufficiency of the evidence at the bench trial be considered again at the

trial court level, assuming, of course, that the judge at the bench trial has

denied an appropriate request for a ruling that the evidence at the bench

trial was insufficient?”

‘This change in the two-tier system was proposed in the December,

1976, Report on the State of the Massachusetts Courts made by the Gover-

nor's Select Committee on Judicial Needs, commonly known as the Cox

Committee. Recommendation 19 was “A defendant charged with a

crime within the jurisdiction of the District Court should be offered an

election between an immediate jury trial and an immediate bench trial

subject to his right to claim a new trial with a six-person jury in the Dis-

trict Court.” Id. at 32. Commenting on its recommendation, the Cox

Committee said: “In this manner, the Commonwealth can eliminate the

1918 10a Mass. Adv. Sh. (1980)

Lydon o. Commonwealth.

ant now is granted the choice of a jury trial in the first in-

stance or a bench trial followed, if he so requests, by a de

novo trial before a jury (or another judge, if the defendant

waives his jury right).°

The circumstances the defendants’ trial are not impor-

tant to the resolution v. the questions of law reported to the

court. The single justice did not report the issue whether

the evidence warranted the defendants’ convictions.° We

treat the case as presenting squarely the question whether

double jeopardy principles bar the retrial of a defendant

who voluntarily chose to have a bench trial when the evi-

dence at the bench trial was inadequate to warrant a con-

viction. We conclude that the defendants’ voluntary choice

of a bench trial and subsequent choice of a trial de novo

create a situation in which double jeopardy is not impli-

cated. Thus, the defendants’ constitutional challenge to the

two-tier trial system, which provides a trial de novo as the

sole means of obtaining relief from the unsatisfactory result

in their bench trial, is without merit.

The defendants argue that they should not be required to

undergo a second trial in order to have their convictions

reviewed, because the evidence at their first trial was insuf-

pitfalls and frustration of the present form of trial de novo and still retain

an arrangement which disposes of minor criminal cases fairly yet with

minimum cost.” Id. at 33.

5The apparent preference of defendants for an initial bench trial,

rather than an immediate jury trial, is demonstrated by data for the six

months of operation of the Municipal Court's jury session under the new

two-tier system. From January 1, 1979, through June 30, 1979, 1751

complaints were received in that session in which only 158, or about 9% ,

were complaints tried before a jury in the first instance. [1979] Annual

Report, The Office of the Chief Administrative Justice of the Trial Court

35 & 37. We note that thousands of complaints were finally disposed of

by convictions at bench trials because the affected defendants did not seek

a jury trial. Jd. at 36.

* The single justice did not sit as a reviewing court in determining the

sufficiency of the evidence. Thus, any conclusion reached by the single

justice on this issue was made for the purpose of reporting clearly framed

questions to the full bench and is not an adjudication of the rights of the

parties in this case.

Mass. Adv. Sh. (1980) lla 1919

Lydon . Commonwealth.

ficient to warrant a conviction. They claim that a trial de

novo would put them twice in jeopardy for the same crime,

in contravention of the Fifth Amendment to the Constitu-

tion of the United States, made applicable to the States

through the Fourteenth Amendment.’ Benton v. Maryland,

395 U.S. 784, 794 (1969). The defendants rely on Burks v.

United States, 437 U.S. 1 (1978), to support their double

jeopardy claim.’ In that case, the Sixth Circuit Court of

Appeals had reversed Burk’s conviction because the evi-

dence did not warrant a guilty finding and had remanded

the case for consideration whether the circumstances war-

ranted a new trial. United States v. Burks, 547 F.2d 968,

970 (6th Cir. 1976). The Supreme Court held, however,

that it would be improper to retry Burks. The Court stated

that a judgment of acquittal was required notwithstanding

the fact that Burks had requested a new trial. 437 U.S. at

17-18.

The Burks case involved different circumstances from

those before us because it dealt with an appellate determi-

nation that the evidence at trial did not warrant a convic-

tion and a further determination that the double jeopardy

clause barred a retrial in those circumstances. Burks was

tried in a judicial system that provided for appellate review.

No reviewing court has ruled on the sufficiency of the evi-

dence at the bench trial in the present case. Under the two-

tier system as it is designed to operate, no court would ever

consider this issue. Thus, Burks v. United States is not ap-

plicable. The Court’s holding in the Burks case was not

that “the Double Jeopardy Clause precludes a second trial

7If the defendants have a valid double jeopardy claim, it properly

should be dealt with in some forum before any second trial. Costarelli v.

Commonwealth, 374 Mass. 677, 680 (1978) (Mass. Adv. Sh. [1978] 734,

737). Immediate relief would be appropriate because, in such a case, the

second trial itself would offend the constitutional guarantee. Id. Abney

v. United States, 431 U.S. 651, 660-661 (1977) (“It is a guarantee against

being twice put to trial for the same offense”).

*On the same day as the Burks decision, the Supreme Court held in

Greene v. Massey, 437 U.S. 19, 24 (1978), that the Burks principle was

applicable to the States through the Fourteenth Amendment.

1920 12a —- Mass. Adv. Sh. (1980)

Lydon v. Commonwealth.

once the reviewing court has found the evidence legally in-

sufficient.” 437 U.S. at 18 (emphasis supplied).

The Court in the Burks case did not consider the question

involved in the case before us, namely, whether under dou-

ble jeopardy principles a defendant convicted on inade-

quate evidence at a bench trial has a right to a reconsidera-

tion of that ruling prior to a trial de novo. The defendants

seek to extend the holding in Burks v. United States, supra,

by arguing that that case requires the Commonwealth to

provide a procedure by which the defendants can have an-

other judge pass on the sufficiency of the evidence presented

at his bench trial.

The defendants are correct in stating that, if they were to

obtain a judgment of acquittal due to the insufficiency of

evidence presented at their trial, they could not be retried.

Double jeopardy protection under the Federal Constitution

is afforded to criminal defendants regardless of whether

such acquittal occurs at a bench trial, Kepner v. United

States, 195 U.S. 100, 133 (1904), at a jury trial, United

States v. Ball, 163 U.S. 662, 671 (1896), or on appeal, Burks

v. United States, supra. Massachusetts heeds this constitu-

tional mandate.® Ludwig v. Massachusetts, 427 U.S. 618,

631 (1976). But double jeopardy protection is not applica-

ble to a defendant who is convicted and seeks reversal of

*The Burks opinion introduced no new concept in the disposition of

criminal appeals in this Commonwealth. At least in recent times, an ap-

pellate determination that the evidence did not warrant a conviction has

resulted in an order for the dismissal of the charges and not in a new trial.

See Commonwealth v. Delgado, 367 Mass. 432, 439 (1975); Common-

wealth v. Silva, 366 Mass. 402, 410-411 (1974) (If motion to suppress had

been allowed, as it should have been, a directed verdict would have been

required. Judgment of not guilty ordered). After the Burks decision, we

ordered the entry of a judgment of not guilty, citing the Burks case, where

the trial judge erroneously failed to strike the testimony of a witness and,

when struck, the remaining evidence did not warrant guilty findings.

Commonwealth v. Funches, Mass. ‘ (1979) (Mass. Adv. Sh.

{1979} 2559, 2572). It was clear in the Funches case that the Common-

wealth could not cure the insufficiency in the proof. See further discus-

sion of the Silva and Funches cases in A Juvenile v. Commonwealth, post

1939 n.5.

Mass. Adv. Sh. (1980) 13a 1921

Lydon v. Commonwealth.

such conviction by resort to a second-tier trial. The distinc-

tion between a convicted defendant and an acquitted de-

fendant in terms of double jeopardy protection was estab-

lished in United States v. Ball, supra at 671-672. The

validity of this distinction was reconfirmed in United States

v. Scott, 437 U.S. 82, 88-89 (1978),'° a case decided the

same day as Burks v. United States, supra.

The defendants’ argument that the Commonwealth has

no legitimate state interest in retrying them overlooks the

fact that the Commonwealth did not seek to retry them.

The defendants were convicted of the crime of possession of

burglarious instruments with the intent to commit larceny.

The Commonwealth was content with that disposition. Al-

though the defendants argue that the findings were errone-

ous, the convictions stood until the defendants requested a

trial de novo, which was the only avenue of relief available

to them.'' The Commonwealth did not force the defend-

ants to submit to a second trial. It simply did not provide

the defendants a right of appeal or other review from their

bench trial. None is constitutionally required. Griffin v.

Illinois, 351 U.S. 12, 18 (1956).

A defendant’s choice to have a bench trial in the first in-

stance, without any prospect of review of errors occurring

in the course of that trial, means that a considerable variety

In the Scott case, the defendant was successful in obtaining a dis-

missal of an indictment because of preindictment delay. The Supreme

Court, by a five-to-four vote, held that the government could appeal the

dismissal because, if the appeal were successful, the defendant properly

could be tried on the indictment without violating the defendant's double

jeopardy rights.

''The situation here is analogous to the situation in United States v.

Ball, 163 U.S. 662 (1896), where the Court held that the defendants’ con-

victions were based on a fatally defective indictment. The Court held

that, although the convictions below would not stand on appeal, “yet, if

the court had jurisdiction of the cause and of the party, its judgment is not

void, but only voidable by writ of error; and, until so avoided, cannot be

collaterally impeached. If the judgment is upon a verdict of guilty, and

unreversed, it stands good, and warrants the punishment of the defendant

accordingly, and he could not be discharged by a writ of habeas corpus.”

Id. at 669-670.

1922 l4a Mass. Adv. Sh. (1980)

Lydon v. Commonwealth.

of errors might occur from which he could not obtain any

relief. Many of these errors are of a type that could have a

considerable effect on the result of the trial. The judge

might misapply the law or improperly admit or exclude evi-

dence, to the defendant’s disadvantage (or advantage).

There might be prosecutorial misconduct, or defense coun-

sel’s performance might be inadequate in a constitutional

sense. However, errors of this nature in the trial of a case,

even when they involve a misapplication of constitutional

principles, have never been regarded as presenting a double

jeopardy issue, that is, barring a second trial on double

jeopardy grounds. “In short, reversal for trial error, as dis-

tinguished from evidentiary insufficiency, does not consti-

tute a decision to the effect that the government has failed

to prove its case.” Burks v. United States, 437 U.S. at 15.

And yet, an accused runs the risk of such errors by choosing

to have an initial bench trial. We have never indicated that

in making such an election the defendant must have know-

ingly considered and voluntarily waived all the potential er-

rors of constitutional dimension.'* But see Ciummei v.

Commonwealth, Mass. (1979) * (explicit waiver of

constitutional right of trial by jury required).

_The two-tier court system has already withstood constitu-

tional challenge in the United States Supreme Court. Lud-

wig v. Massachusetts, 427 U.S. 618 (1976). Colten v. Ken-

tucky, 407 U.S. 104 (1972). Some form of two-tier system is

in effect in approximately one-half of the States. Colten v.

Kentucky, supra at 112 n.4. It is difficult to conceive that

the Supreme Court intended in its Burks decision to hold, by

implication, that such a widely adopted system for dealing

'? The United States Supreme Court has noted that “the inferior courts

are not designed or equipped to conduct error-free trials, or to insure full

recognition of constitutional freedoms. They are courts of convenience,

to provide speedy and inexpensive means of disposition of charges of

minor offenses.” Colten v. Kentucky, 407 U.S. 104, 117 (1972), quoting

from Colten v. Commonwealth, 467 S.W.2d 374, 379 (Ky. 1971).

“Mass. Adv. Sh. (1979) 1838.

Mass. Adv. Sh. (1980) 15a 1923

Lydon v. Commonwealth.

with less serious crimes is unconstitutional. See Greene v.

Massey, 437 U.S. 19, 27 (1978) (Rehnquist, J., concurring).

The present Massachusetts two-tier system is indistin-

guishable from that of the Kentucky court system which

was challenged on double jeopardy grounds in Colten v.

Kentucky, supra, except that to avoid a trial at the first level

of the Kentucky system, a defendant had to plead guilty in

the inferior court and then request a trial “de novo.” Id. at

112. A defendant tried in the District and Municipal

Courts of Massachusetts may simply obtain a jury trial in

the first instance without the stigma of a guilty plea on his

record. But neither the Kentucky court system examined in

Colten v. Kentucky nor the present Massachusetts two-tier

system imposes two trials on criminal defendants. Thus, no

double jeopardy problem is presented. Colten v. Kentucky,

supra at 119-120.

The defendants in the present case elected to follow the

procedure by which they obtained a bench trial, preserving

their right to seek a jury trial if they were dissatisfied with

the results of the bench trial. They could have obtained a

jury trial in the first instance with a right of appellate

review, and no question of double jeopardy would have

arisen at the trial level.

The procedure by which a defendant elects a trial by a

judge without a jury in the first instance is not casual. Sec-

tion 26A of G. L. ec. 218, inserted by St. 1978, c. 478, § 188,

carefully defines the defendant’s right to assure tha. the de-

fendant makes an informed choice. Trials “shall be by a

jury of six, unless the defendant files a written waiver and

consent to be tried by the court without a jury, subject to his

right of appeal therefrom for trial by a jury of six pursuant

to [§ 27A].” Id. No such waiver may be received “unless

the defendant is represented by counsel or has filed a writ-

ten waiver of counsel.” Id.'*

'3 Rule 12(A) of the Initial Rules of Criminal Procedure for the District

Courts, effective on January 14, 1980, and not applicable to these defend-

1924 16a Mass. Adv. Sh. (1980)

Lydon v. Commonwealth.

A defendant obtains certain distinct advantages in having

a bench trial followed by a jury trial, if he wishes. A bench

trial serves as a means of discovery and recordation of the

prosecution’s testimony. Indeed, the judge may find the de-

fendant not guilty. That would end the matter. A bench

trial takes less time than a jury trial, offering the defendant

a less expensive and less time consuming process. And, if

the defendant does not like the result, he may obtain a sec-

ond chance before a jury or, if he waives a jury, before a

second judge, unfettered by the adverse decision previously

made. The Burks opinion does not alter the statement in

Ludwig v. Massachusetts, 427 U.S. 618, 632 (1976), that

“(nJothing in the Double Jeopardy Clause prohibits a State

from affording a defendant two opportunities to avoid con-

viction and secure an acquittal.”

We acknowledge that “where the Double Jeopardy

Clause is applicable, its sweep is absolute.” Burks v. United

States, 437 U.S. at 11 n.6. There are no equities to be

balanced when the clause applies. We think that no double

jeopardy is involved, however, when a criminal defendant

voluntarily elects to accept the consequences of a procedure

such as the optional two-tier system now in effect in the

Commonwealth. We concur with the conclusion of the

United States Supreme Court “that the Double Jeopardy

Clause, which guards against Government oppression, does

not relieve a defendant from the consequences of his volun-

tary choice.” United States v. Scott, 437 U.S. 82, 99 (1978).

ants because they were arraigned in the Municipal Court of the City of

Boston (and before January 14, 1980), provides in part:

“The oral notice of right to first-instance jury trial shall include a

statement to the defendant that if he or she waives this right he or

she will receive a trial before a judge and if not satisfied with the

results of that trial will be able to appeal for a new trial before a

jury.”

In light of this opinion, consideration might be given to enlarging the

consent form so that the defendant acknowledges that his only avenue of

relief from any error in the bench trial is a trial de novo.

Mass. Adv. Sh. (1980) 17a 1925

Lydon v. Commonwealth.

In effect, allowing a defendant to have a trial de novo, like

requiring “a criminal defendant to stand trial again after he

has successfully invoked a statutory right of appeal to upset

his first conviction[,] is not an act of governmental oppres-

sion of the sort against which the Double Jeopardy Clause

was intended to protect.” Id. at 91.

We have discussed the double jeopardy issue in terms of

the requirements of the Constitution of the United States.

No separate argument has been made under the law of the

Commonwealth, including the Massachusetts Constitution.

The reported question was not limited to the Federal consti-

tutional issue nor expressed solely in terms of constitutional

rights. Although this court has never explicitly stated that

our Declaration of Rights includes a double jeopardy

guarantee (see Commonwealth v. Cepulonis, 374 Mass.

487, 491-492 [1978]°), protection against double jeopardy

in this Commonwealth has long been part of the common

law. See Gallinaro v. Commonwealth, 362 Mass. 728,

736-737 (1973).

As a matter of common law, we have never held that

double jeopardy principles are involved when a criminal de-

fendant, who may have been erroneously convicted at a

bench trial, is afforded no appellate or other review of the

alleged error but is allowed to seek relief solely by the means

of a new trial completely divorced from the record of the

prior trial. See Mann v. Commonwealth, 359 Mass. 661,

664 (1971). The claim of appeal for a second trial has been

treated as simply vacating the judgment of the court at the

bench trial. See Enbinder v. Commonwealth, 368 Mass.

214, 217, cert. denied, 423 U.S. 1024 (1975), and cases

cited. For the same reasons stated in our discussion on the

Constitution of the United States, the circumstances of this

case do not offend any provision in the Constitution of the

Commonwealth extending jeopardy protection.

We come then to the question, which is rendered largely

academic by what we have already decided, namely wheth-

> Mass. Adv. Sh. (1978) 477, 482.

1926 18a Mass. Adv. Sh. (1980)

Lydon v. Commonwealth.

er the jury-trial judge could pass on the defendants’ motion

to dismiss on grounds of double jeopardy. We conclude

that the jury trial session is the appropriate forum for con-

sideration of double jeopardy claim asserted after a bench

trial. If there is a valid double jeopardy claim, it should be

dealt with before, rather than after, the second trial. See

note 7 supra.

In Whitmarsh v. Commonwealth, 366 Mass. 212, 216

(1974), appeal dismissed, 421 U.S. 959 (1975), we denied

relief under G. L. c. 211, § 3, noting the availability of re-

lief for a double jeopardy claim by means of a motion to dis-

miss filed in the Superior Court after a District Court bench

trial. That opinion considered the procedure for raising

double jeopardy issues under the former two-tier system, '*

but the result is no different under the current two-tier

system. Rule 13 (c) (2) of the Massachusetts Rules of Crimi-

nal Procedure ( = Mass. [1979]) provides that “[a] de-

fense or objection which is capable of determination

without trial of the general issue shall be raised before trial

by motion.” Consequently, the defendants’ motion to

dismiss properly should have been considered on the merits

in the jury trial session. See A Juvenile v. Commonwealth,

Mass. ; - (1980);° Connaughton v. District

Court of Chelsea, 371 Mass. 301 (1976).

We answer the first reported question in the negative. A

defendant is not placed in double jeopardy merely because

his only avenue of relief from a conviction based on insuffi-

cient evidence at a voluntarily sought bench trial is a trial de

novo. As to the second reported question, the jury-trial

judge would have no occasion to consider the sufficiency of

the evidence at the bench trial. Because there would be no

valid double jeopardy claim, even if the evidence were in-

sufficient to warrant the conviction, the jury-trial judge’s

'*See Gibson, post, where we discuss the jurisdiction of the Superior

Court to consider such a motion under the former two-tier system.

“Mass. Adv. Sh. (1980) 1131, 1136-1137.

Mass. Adv. Sh. (1980) 19a 1927

Lydon v. Commonwealth.

only option would be to deny such a motion. The case is

remanded to the county court for the entry of judgment.

So ordered.

Liacos, J. (concurring in part and dissenting in part,

with whom Abrams, J., joins). Today the court addresses

the constitutionality of an aspect of the optional two-tier

system of criminal trials described in part in G. L. c. 218,

§ 26A, inserted by St. 1978, c. 478, § 188. Under this

system, a defendant who chooses a bench trial aid is con-

victed on insufficient evidence can be retried de novo to a

jury, but he has no other avenue of relief. The majority

conclude that this practice does not offend the double jeop-

ardy clause of the Federal Constitution. I respectfully dis-

agree.

The double jeopardy clause creates a constitutional policy

against multiple trials of a criminal defendant. See Green

v. United States, 355 U.S. 184, 187-188 (1957). If the prose-

cution received “one fair opportunity to offer whatever

proof it could assemble,” but the proof was insufficient, re-

trial of the defendant would frustrate the purpose of the

double jeopardy clause. Burks v. United States, 437 U.S. 1,

16 (1978). See Greene v. Massey, 437 U.S. 19 (1978).!

The majority declare that “double jeopardy protection is

not applicable to a defendant who is convicted and seeks

reversal of such conviction by resort to a second-tier trial.”

‘Our previous two-tier system survived a general double jeopardy chal-

lenge. Ludwig v. Massachusetts, 427 U.S. 618 (1976). A system some-

what similar to our present one withstood a general challenge in Colten v.

Kentucky, 407 U.S. 104 (1972). However, neither decision addressed the

situation in which evidence at the first trial was insufficient. See Gibson v.

Commonwealth, post (1980) (Mass. Adv. Sh. [1980] 1933). Both

Ludwig and Colten were decided, moreover, prior to Burks, in which the

Court first drew a clear distinction between failure of proof and mere trial

error, thus overruling a number of earlier cases dealing with double

jeopardy clair is.

1928 20a Mass. Adv. Sh. (1980)

Lydon v. Commonwealth.

Supra at .“ Burks, however, focused on the nature of

the error committed at the first trial, not on acquittal or

conviction. Thus, if the error is mere “trial error,” which

“implies nothing with respect to the guilt or innocence of

the defendant,” the defendant may be retried. Burks,

supra at 15. If, on the other hand, the government failed to

prove its case, retrial is impermissible. Id. at 16. The evil

at stake is that a defendant against whom the prosecution

has not been able to muster even a prima facie case must en-

dure a second trial.

The majority impose a precondition for attachment of the

defendants’ double jeopardy rights; an appellate determina-

tion that the evidence was insufficient to convict him.* In

so doing, the majority disregard the substantive mandate of

Burks and fix upon a formal nicety wholly unrelated to the

purposes of the double jeopardy clause. If a defendant is

convicted on insufficient evidence, he cannot be retried,

and it should matter not at all whether an appellate court

has confirmed the insufficiency.

The double joepardy clause requires the prosecution to

prove its case in one trial. If the prosecution's evidence was

so weak that no reasonable trier of fact could conclude that

the defendants were guilty beyond a reasonable doubt, this

principle applies with special force. The majority choose to

*Mass. Adv. Sh. (1980) 1919.

*The majority cite United States v. Scott, 437 U.S. 82, 88-89 (1978), in

support of their distinction. Supra at (Mass. Adv. Sh. [1980] at

1921). Scott involved an appeal by the government. But, in summary,

that discussion merely states: “ The successful appeal of a judgment of con-

viction, on any ground other than the insufficiency of the evidence to sup-

port the verdict, . . . poses no bar to further prosecution on the same

charge.” Jd. at 90-91. For a defendant convicted at a first trial, the Scott

opinion does not abrogate the distinction between evidentiary insufficien-

cy and trial error. Indeed, the careful distinctions drawn in Scott as to

dismissal of an indictment for reasons other than failure of proof support

my view. “In the present case, the District Court’s dismissal of the first

count of the indictment [after the close of all of the evidence) was based

upon a claim of preindictment delay and not on the court's conclusion

that the Government had not produced sufficient evidence to establish the

guilt of the defendant.” Jd. at 95.

Mass. Adv. Sh. (1980) — 2la 1929

Lydon v, Commonwealth,

ignore this logic. They would put the defendants here

through the “embarrassment, expense and ordeal” of a sec-

ond trial, and would consign them for a second time to “a

continuing state of anxiety and insecurity.” Green v.

United States, supra at 187. They refuse to recognize that

the double jeopardy clause safeguards against just such mis-

treatment at the hands of the criminal justice system. After

today, the enforceability of the Burks right will depend

largely upon the sufferance of the Legislature. If the Legis-

lature chooses to provide a criminal defendant with no

‘avenue of relief other than a second trial, the defendant’s

constitutional right must languish among shadows.

The majority opinion states: “We think that no double

jeopardy is involved . . . when acriminal defendant volun-

tarily elects to accept the consequences of a procedure such

as the optional two-tier system now in effect in the Com-

monwealth.” Supra at .» The majority point out that

the defendants, not the Commonwealth, sought a trial de

novo and that the Commonwealth simply provided the de-

fendants with no other right to review of the bench trial.

The majority seem to treat a defendant’s “voluntary”

choice of a bench trial and subsequent “choice” of a trial de

novo as a waiver of his double jeopardy rights. But waiver

of rights under the double jeopardy clause, like waiver of

other constitutional rights, must be knowing and voluntary.

Green v. United States, supra at 191. Even if the Common-

wealth is not obliged to furnish a defendant with an avenue

of appeal, a defendant choosing the bench trial should

> Mass. Adv. Sh. (1980) at 1924,

*“We conclude that the defendants’ voluntary choice of a bench trial

and subsequent choice of a trial de novo create a situation in which double

jeopardy is not implicated.” Supra at (Mass. Adv. Sh. [1980] at

1918). “(DJouble jeopardy protection is not applicable to a defendant

who is convicted and seeks reversal of such conviction by resort to a sec-

ond-tier trial.” Supra at (Mass. Adv. Sh. [1980] at 1920-1921). Such

language disregards the clear language of Burks to the contrary: “In our

view it makes no difference that a defendant has sought a new trial as one

of his remedies, or even as the sole remedy.” Burks v. United States, 437

U.S. 1, 17 (1978).

1930 22a Mass. Adv. Sh. (1980)

Lydon v. Commonwealth.

understand what he is giving up. Yet the majority seem

oblivious to this principle. They make no provision that a

defendant understand he is giving up his right not to be

tried a second time after being convicted on insufficient evi-

dence.‘ However, if a defendant’s choice of a bench trial

was not made intelligently, then he did not choose to accept

the consequences of his choice. He did not choose to make a

second trial his only avenue of relief from a conviction in the

first trial. If a defendant's initial choice was not intelligent,

it is pointless to say that the Commonwealth does not force

him to endure a second trial.

The majority do not suggest that the present two-tier

system makes provision for explicit waiver of the right to

avoid a second trial after a bench trial conviction on insuffi-

cient evidence. Nor does such a waiver appear affirmative-

ly in the report or the record. See Ciummei v. Common-

the first reported question in the affirmative.

On the second question, as if to carry their sophistical ex-

ercise a step further, the majority assert that the defendants,

in a case such as this one, can raise their double jeopardy

claims before the jury-trial judge. But what can be the pur-

pose of this review? According to the majority, the defend-

ants have no double jeopardy claim. Thus, for defendants

such as Michael Lydon and Robert McDonald, the proce-

dure before the jury-trial judge can only be charade in which

the defendants’ motion to dismiss inevitably will be denied.

Perhaps the real purpose of this review is to give the jury-

trial judge a chance to rule on the sufficiency of the evidence

and thus to nullify the inexplicable result reached today.°®

‘The majority point out that a defendant who chooses a bench trial

may obtain tactical and other advantages. Supra at (Mass. Adv. Sh.

[1980] at 1923). However, a defendant's choice is not meaningful, in

constitutional terms, unless he also understands that he is giving up his

constitutional right. Johnson v. Zerbst, 304 U.S. 458 (1938).

Mass. Adv. Sh. (1979) 1838.

*The majority do not state that this review is available for all double

jeopardy claims arising from the bench trial, or for claims unlike Lydon’s

and McDonald's.

Mass. Adv. Sh. (1980) 23a 1931

Lydon v. Commonwealth.

Because I would answer the first reported question in the

affirmative, I concur with the majority's answer to the sec-

ond question. The jury trial session is the proper forum for

a defendant to raise a double jeopardy claim arising at his

bench trial.

Mass. Adv. Sh. (1980) 24a | 1933

Gibson v. Commonwealth.

RicHARD GIBSON vs. COMMONWEALTH.

Suffolk. May 6, 1980. — August 22, 1980.

Present: Hennessey, C.J., Qumvco, Braucnen, Kaptan, Wirxins, Liacos, & Asnams, JJ.

Constitutional Law, Double jeopardy. Supreme Judicial Court, Superin-

tendence of inferior courts. Practice, Criminal, “Two-tier” court sys-

tem.

CiviIL ACTION commenced in the Supreme Judicial Court

for the county of Suffolk on April 27, 1979.

The case was reported by Quirico, J.

Steven M. Wise for the petitioner.

Robert M. Payton, Assistant District Attorney, for the

Commonwealth.

Richard J. Hayes, William J. Leahy, Martin R. Rosenthal

¢ Brownlow M. Speer, for the Massachusetts Defenders

Committee, amicus curiae, submitted a brief.

Wixkins, J. This is the second case we decide today in-

volving the claim of an accused that he would be denied his

constitutional right against being placed twice in jeopardy if

a new trial is offered as the only relief from his conviction on

insufficient evidence presented at a bench trial in a District,

Municipal, or Juvenile Court.

On May 4, 1978, the petitioner, whom we shall call the

defendant, was convicted, after a bench trial in the Second

Plymouth Division of the District Court Department sitting

at Hingham, of using a motor vehicle without authority

(G. L. c. 90, § 24) and of receiving stolen goods (G. L.

c. 266, § 60). The proceeding was recorded on tape. The

defendant moved for a finding of not guilty on both charges

at the close of the Commonwealth’s case. He claimed an

appeal for a trial de novo before a jury of twelve in the Su-

perior Court in Plymouth County. See G. L. c. 278, § 18,

1934 25a Mass. Adv. Sh. (1980)

Gibson v. Commonwealth.

as amended through St. 1974, c. 167. He moved in the Su-

perior Court for dismissal of the charges and for judgments

of acquittal on the charges, alleging that there was insuffi-

cient admissible evidence at his first, or bench, trial to war-

rant a conviction. He argued that a trial de novo would

violate his double jeopardy rights and would deny him due

process of law under the Fourteenth Amendment to the

Constitution of the United States.

In a carefully considered order concerning the motion to

dismiss, entered on April 9, 1979, a judge of the Superior

Court noted that, in light of the decision in Burks v. United

States, 437 U.S. 1 (1978), the defendant’s double jeopardy

claim was one of substance. He concluded that “if the de-

fendant’s conviction after a bench trial in the District Court

is based on insufficient evidence as a matter of law, he is not

subject to further criminal proceedings upon these charges.”

However, he concluded further that the Superior Court had

no jurisdiction to review the defendant’s double jeopardy

claim and denied the motion to dismiss. He suggested that

relief might be obtained in an appellate court, perhaps by a

writ of error.

The defendant thereafter filed a petition seeking relief

under this court’s power of general superintendence. G. L.

c. 211, § 3. A single justice reported the entire case to the

full court, reciting three principal questions, that are set

forth in the margin.' These questions concern (a) the right

'“(a) Whether under the two-tier system for the trial of criminal cases

in effect when the defendant was tried in the District Court and his ap-

peal therefrom to the Superior Court for a trial de novo, the defendant

was entitled, by a pretrial motion in the Superior Court, to raise the issue

whether the evidence which was before the District Court was sufficient

to support the finding in the latter court that the defendant was guilty

beyond a reasonable doubt of the crimes charged against him;

“(b) Whether the Superior Court has jurisdiction to receive, hear and

decide such a motion; and

“(c) Whether the defendant's constitutional right not to be twice put in

jeopardy for the same offense would be violated if he were required to

stand trial de novo in the Superior Court on any complaint as to which the

evidence presented by the Commonwealth thereon in the prior trial in the

District Court: was not sufficient to support a finding of guilty beyond a

reasonable doubt. See Burks v. United States, 437 U.S. 1 (1978).”

Mass. Adv. Sh. (1980) 26a 1935

Gibson v. Commonwealth.

of the defendant to raise by a pretrial motion in the Superior

Court the issue of the insufficiency of the evidence at his

bench trial, (b) the jurisdiction of the Superior Court to

hear such a motion, and (c) the defendant’s double jeopardy

rights if the evidence at his bench trial was not sufficient to

support findings of guilt beyond a reasonable doubt.

The defendant’s trial occurred at a time when the former

two-tier procedure was in effect in the Commonwealth.

Under that procedure, a defendant was tried first in the Dis-

trict Court without a jury and, if found guilty, could appeal

to the Superior Court for a trial before a jury of twelve or to

the District Court before a jury of six. G. L. c. 278, § 18, as

amended through St. 1974, c. 167. The defendant did not

have the option of having a jury trial in the first instance as

is the case under the current two-tier system.? See Lydon v.

Commonwealth, ante (1980) .*

We conclude that the principles of the Burks case apply

only when there is an appellate determination that the evi-

dence at trial was insufficient. Because neither the former

Massachusetts trial system nor the present one provides any

appellate review of errors or omissions in the bench trial,

the principles underlying the Burks case have no application

to these two-tier systems. We conclude further that, on

proper motion, a judge of the Superior Court should pass on

a double jeopardy challenge of the character involved here.

The defendant argues that the Burks opinion stands for

the proposition that a person convicted at a bench trial on

insufficient evidence may not be retried regardless of the

fact that the only avenue of relief from such conviction is a

* However, as the United States Supreme Court observed in Ludwig v.

Massachusetts, 427 U.S. 618, 621 (1976), an accused tried under the

former two-tier system in Massachusetts could substantially avoid a trial

in the first tier “by an established, informal procedure known as ‘admit-

ting sufficient findings of fact."” The Court noted that an “accused may

enjoy his right to trial by jury expeditiously by invoking the above-de-

scribed procedure of ‘admitting sufficient findings of fact.’ He, therefore,

need not pursue, in any real sense, a defense at the lower tier.” Id. at 626.

* Mass. Adv. Sh. (1980) 1915.

”

1936 27a Mass. Adv. Sh. (1980)

Gibson v. Commonwealth.

trial de novo. The argument rests on the assertion that if, as

in the Burks case, an appellant who successfully challenges

the sufficiency of the evidence must be acquitted, then a de-

fendant convicted on insufficent evidence must have avail-

able, prior to a second trial, some procedure by which he

can secure an acquittal. The defendant claims that the

Massachusetts two-tier trial system is unconstitutional

because it does not provide for appellate review but offers

an improperly convicted defendant only another trial as a

cure, that is, a second trial at which the prosecution will

have a chance to overcome its earlier failure to meet its

proof. In short, the defendant argues that principles

underlying the Burks decision imply that an accused who is

obliged to undergo a bench trial, is found guilty on evidence

not sufficient to warrant a conviction, and has no avenue of

relief but to seek a de novo jury trial is denied his right

under the double jeopardy clause to have the charges

against him dismissed.*

Our opinion in Lydon v. Commonwealth, supra, con-

siders and rejects the proposition that the double jeopardy

clause of the Fifth Amendment, made applicable to the

States by the Fourteenth Amendment, requires a State to

provide, in all instances, a procedure for review of the suffi-

ciency of the evidence at a bench trial. Much of the reason-

ing of that opinion applies here. In our Lydon opinion, we

noted that “[t]he two-tier court system has already with-

stood constitutional challenge [on double jeopardy grounds]

in the United States Supreme Court. Ludwig v. Massachu-

>This was the view of the Superior Court judge who heard the defend-

ant’s motion to dismiss.

The Commonwealth in this case largely accepts this view as well, sub-

mitting that an affirmative answer to reported question (c) is correct “pro-

vided that it has been further determined that the Commonwealth has

had a full and fair opportunity to present whatever evidence it could

assemble upon the first occasion where the defendant had been placed in

jeopardy.” The position of the District Attorney for the Plymouth district

on this point is contrary to tne position taken by the District Attorney for

the Suffolk district in the Lydon, surpa, and Juvenile, post (1980)

(Mass. Adv. Sh. [1980] 1939), cases decided today.

28a

Mass. Adv. Sh. (1980) 1937

Gibson v. Commonwealth.

setts, 427 U.S. 618 (1976). Colten v. Kentucky, 407 U.S.

104 (1972).” Approximately half the States have some form

of two-tier system. Colten v. Kentucky, supra at 112 n.4.

The Burks opinion makes no mention of two-tier trial sys-

tem and cites neither the Ludwig nor the Colten cases. We

are unwilling to conclude that the Supreme Court intended

in its Burks opinion to invalidate by implication such a

widely used system for the disposition of cases involving less

serious crimes. We have found no reported case in any

other jurisdiction in which a two-tier criminal defendant

has advanced a double jeopardy argument based on an ex-

tension of the holding in the Burks case. We do not find in

the Burks opinion any indication that the Supreme Court

has abandoned its position in Ludwig v. Massachusetts, 427

U.S. 618 (1976), where the Court upheld the very same pro-

cedure that is involved in this case. We hold that the Su-

preme Court’s ruling in the Ludwig case is controlling here.

We come then to the question whether a defendant under

the former two-tier system could present to the Superior

Court his challenge based on the double jeopardy clause.

We think that the Superior Court was the appropriate

forum for such a claim and that, at least until the matter is

passed on there, a single justice of this court need not grant

relief under this court’s general superintendence power

(G. L. c. 211, §3). See Whitmarsh v. Commonwealth, 366

Mass. 212, 216 (1974), appeal dismissed, 421 U.S. 959

(1975). At the time the defendant’s motion was filed in the

Superior Court and considered there (see G. L. c. 277,

§ 47A, as amended through St. 1978, c. 478, § 298 [effective

January 1, 1979 (St. 1978, c. 478, § 343)]), the applicable

statute provided that in criminal proceedings “[a]ny .. .

objection which is capable of determination without the

trial of the general issue may be raised before trial by mo-

tion.”* Consequently, the defendant’s motion to dismiss

*Today, G. L. c. 277, § 47A, as appearing in St. 1979, c. 344, § 39 (by

§ 51, effective July 1, 1979), has been amended, deferring many proce-

dural matters to the Massachusetts Rules of Criminal Procedure, which

29a

1938 Mass. Adv. Sh. (1980)

Gibson v. Commonwealth.

properly should have been considered on its merits in the

Superior Court. See Lydon v. Commonwealth, supra.

Because the defendant has no valid double jeopardy claim

even if the evidence at his bench trial was insufficient to

warrant his convictions, the motion to dismiss should have

been denied in the Superior Court and, accordingly, relief

under the general superintendence powers of the court is

not appropriate. The petition under G. L. c. 211, § 3,

should be dismissed.®

So ordered.

Liacos, J. (dissenting, with whom Abrams, J., joins). I

respectfully dissent for the reasons stated in my opinion in

Commonwealth v. Lydon, ante. I would remand the case

to the single justice who could either rule on the sufficiency

of the evidence or permit the judge of the Superior Court to

reconsider the defendant's motion to dismiss. Upon a deter-

mination that the evidence at the bench trial was insuffi-

cient, the court should allow the motion to dismiss. I need

not reach the question whether double jeopardy bars a re-

trial when the only evidence tending to prove an element of

the crime was improperly admitted at the first trial. See

Greene v. Massey, 437 U.S. 19, 26 n.9 (1978). I add only

that if the majority's opinion in Lydon has any arguable

validity whatsoever, the majority opinion here is even less

justifiable. This defendant had no option under G. L.

c. 278, § 18, as amended through St. 1974, c. 167, but was

required to undergo a bench trial prior to obtaining a con-

stitutionally protected right to trial by jury. Supra.

were effective on July 1, 1979. The same result is called for under the cur-

rent two-tier system. See Lydon v. Commonwealth, supra at (Mass.

Adv. Sh. [1980] at 1926), quoting from Mass. R. Crim. P. 13 (c) (2),

Mass. (1979).

5 Because of our conclusion that the double jeopardy clause does not

provide a valid foundation for the defendant's argument, we need not

decide whether the record in fact demonstrates that the evidence was in-

sufficient to warrant the defendant's convictions.

30a

COMMONWEALTH OF MASSACHUSETTS.

SUPREME JUDICIAL CourRT FOR THE COMMONWEALTH,

At Boston,

September 17, 1980

ORDER

It is hereby Ornperep, that the Motion heretofore filed, to stay

the issuance of the rescript, in each of the following cases is

allowed:

SJC-2107 Michael Lydon & another v. Commonwealth

SJC-2121 A Juvenile v. Commonwealth

By the Court,

Patrick J. Hurley, Clerk

3la

Massachusetts General Laws c. 119, § 56, as amended through

St. 1977, c. 431, § 2, provides in pertinent part:

. . achild adjudged a delinquent child may appeal to

the superior court upon adjudication, and also may ap-

peal to said court at the time of the order of commitment

or sentence, and such child shall, at the time of such

adjudication and also at the time of such order of com-

mitment or sentence, be notified of his right to appeal. If

such child appeals to the superior court at either of said

times, said court shall thereupon have jurisdiction of such

case, and such case shall forthwith be entered in said

court. The appeal, if taken, shall be tried and deter-

mined in like manner as appeals in criminal cases, except

that the trial of said appeals in the superior court shall not

be in conjunction with the other business of that court,

but shall be held in a session set apart and devoted for the

time being exclusively to the trial of juvenile cases. This

shall be known as the juvenile session of the superior

court, and shall have a separate trial list and docket. All

appealed juvenile cases in the superior court shall be

transferred to this list, and shall be tried, unless otherwise

disposed of by direct order of that court. . . . Any child

adjudged a delinquent in any district court in Suffolk

County or in the Boston Juvenile Court, shall appeal to

the Boston Juvenile Court and claim a jury of twelve in

said court, if he so desires. Such claim shall be in

writing. When a claim for a trial by a jury of twelve in

the Boston Juvenile Court has been made under the pro-

visions of said rules, the clerk of such district court in Suf-

folk County shall forthwith forward all papers in the case

to the clerk of the Boston Juvenile Court. The justice

presiding over a jury of twelve in said juvenile court shall

have and exercise all the powers and duties which a jus-

32a

tice of the superior court has and may exercise in the trial

and disposition of appeals under the first paragraph. .. .

In the event of a trial by a jury of twelve in said juvenile

court, review may be had directly by the Supreme Judi-

cial Court by a bill of exceptions, appeal, report, or oth-

erwise in the same manner as provided for trials by jury

in the superior court... .

Massachusetts General Laws c. 119, § 55A, was added by St.

1978, c. 478, § 56, effective January 1, 1979. It provides:

Trial of a child complained of as a delinquent child in a

division of the district court department or of the juvenile

court department shall be by a jury, unless the child files

a written waiver and consent to be tried by the court

without a jury, subject to his right of appeal therefrom

for trial by a jury pursuant to section fifty-six. Such

waiver shall not be received unless the child is repre-

sented by counsel or has filed, through his parent or guar-

dian, a written waiver of counsel. Such trials by jury in

the first instance shall be in jury sessions designated for

their repective departments by the administrative justices

of the district and juvenile courts for the hearing of ap-

peals claimed pursuant to said section fifty-six. All provi-

sions of law and rules of court relative to the hearing and

trial of such appeals shall apply also to jury trials in the

first instance.

Massachusetts General Laws, c. 119, § 55A, was not ap-

plicable to the instant case insofar as the juvenile petitioner’s

arraignment occurred on November 28, 1978.

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.