# Petition — A Juvenile v. Massachusetts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1062

## Text

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,

v.

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
12n
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12n
12n
12n
12n
12n
12n

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12n
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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.

2

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.

3
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

4

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,

5

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.

6

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.

7

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).

8

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

9

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

10
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.

1]

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.

12

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;

13

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

(4

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-
wealth, Mass. (1979).© Therefore, I would answer
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0641%3A1. Public record. Not legal advice.