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March 21, 1978


Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 14, 1977. The case was reported by Braucher, J.

Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.


Supreme Judicial Court, Superintendence of inferior courts. Constitutional Law, Double jeopardy. Practice, Criminal, Waiver of appellate rights, Appeal to Superior Court. Motor Vehicle, Unauthorized use, Larceny.

The opinion of the court was delivered by: Quirico

Where a defendant in a criminal case presented a substantial claim that he was being placed twice in jeopardy and where a refusal to review the claim prior to trial would result in the irremediable denial of his constitutional rights, the defendant was entitled to have an order denying his claim of double jeopardy reviewed by this court under its general superintendence power granted by G. L. c. 211, § 3. [679-680]

A defendant's failure to assert a defense of prior jeopardy in a District Court did not result in a waiver of the defense for purposes of a de novo appeal to the Superior Court. [680-681]

Where it appeared that a District Court Judge dismissed a complaint because the evidence was insufficient to sustain a conviction on the charge, further prosecution for the same offense was barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. [681-683]

Charges of larceny of a motor vehicle and use without authority of the same vehicle constitute the same offense within the meaning of the double jeopardy clause of the Fifth Amendment to the United States Constitution. [683-684]

This case is before us on a reservation and report by a single Justice of this court. The question presented is whether the double jeopardy clause of the Fifth Amendment to the United States Constitution bars prosecution for the crime of using a motor vehicle without authority after the trial and dismissal of an earlier complaint charging the crime of larceny of the same vehicle. We hold that it does in the circumstances of this case.

We summarize the facts as they appear in a statement of agreed facts filed with the single Justice. On January 23, 1974, Costarelli (the defendant) was tried in the Municipal Court of the City of Boston on a complaint charging him with larceny of a motor vehicle. G. L. c. 266, § 28. At the completion of the evidence, which consisted of the testimony of two witnesses for the prosecution and the testimony of the defendant, the defendant moved for a finding of not guilty. The trial Judge instead advised the police prosecutor that he had brought the wrong charge and ordered him to obtain a new complaint charging the defendant with the crime of driving the same motor vehicle without authority. G. L. c. 90, § 24 (2) (a). Without asking for or obtaining the defendant's consent therefor, the Judge dismissed the larceny complaint while the prosecutor obtained the new complaint. The defendant remained silent thereon.

On February 27, 1974, the defendant was tried on the new complaint, found guilty, and sentenced to one year in a house of correction. The defense of double jeopardy was not raised at that trial. The defendant appealed his conviction and sentence to the Superior Court. On February 2, 1977, when the case was called for trial in that court, the defendant filed a motion to dismiss the complaint on the ground that he had been previously placed in jeopardy for the same crime when he was tried on the complaint charging larceny. The motion was denied. The defendant thereon promptly filed the present petition for relief by a single Justice of this court under G. L. c. 211, § 3, the relief sought being a stay of trial on the criminal complaint in the Superior Court and an order for the dismissal of that complaint. The single Justice, on the filing of a statement of agreed facts, reserved and reported the case to the full court without decision.

The defendant contends that his trial on the larceny charge, although it ended in a dismissal, placed him in jeopardy as well for the crime of use without authority. He maintains that, after the dismissal of the initial complaint, a subsequent prosecution for either offense was barred. The Commonwealth argues that this case is not properly before this court; that the defendant waived his right to raise a double jeopardy defense by failing to assert it at the second Municipal Court trial; and that, notwithstanding our decision on the first two issues, the double jeopardy clause does not bar the second prosecution. We disagree, and hold that the issue is properly raised in this proceeding, and that the second prosecution was barred.

1. The defendant contends that the case is properly before us pursuant to G. L. c. 211, § 3, which grants to this court general superintendence power over all inferior courts. *fn1 This extraordinary power will not ordinarily be exercised to review interlocutory rulings in criminal cases, since the rights of criminal defendants are generally fully protected through the regular appellate process. See Rosenberg v. Commonwealth, 372 Mass. 59, 61 (1977). *fn2 However, in the most exceptional circumstances, our power under this statute will be exercised to review an interlocutory ruling. Corey v. Commonwealth, 364 Mass. 137, 138 (1973). Specifically, the defendant must show (1) that he has a substantial claim that an important substantive right, belonging to him, is being violated, Lataille v. District Court of E. Hampden, 366 Mass. 525, 526 (1974), and (2) that the error is irreversible, such that an order for a new trial in the normal process of appeal would not place him in statu quo. Whitmarsh v. Commonwealth, 366 Mass. 212, 215 (1974), appeal dismissed, 421 U.S. 957 (1975).

We believe that such a showing has been made here. The right to be free from being placed twice in jeopardy is significant, and the defendant's petition presents a claim that has substantial merit. More important is the fact that a refusal by us to review before trial the claim of rights under the double jeopardy clause would, because of the nature of the guaranty, result in the irremediable denial of such rights. In Abney v. United States, 431 U.S. 651 (1977), the Supreme Court, in holding that a pre-trial order denying a claim of former jeopardy was reviewable under the Federal appeals statute, 28 U.S.C. § 1291 (1970), stated: "his Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Abney, supra at 660-661 (emphasis in original). Compare United States v. Wilson, 420 U.S. 332 (1975), with United States v. Jenkins, 420 U.S. 358 (1975). This guaranty against being twice exposed to the risk of conviction, ...

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