Argued October 9, 2014
Indictments found and returned in the Superior Court on May 16, 1973.
Following review by this court, 367 Mass. 24, 323 N.E.2d 902 (1975) and 378 Mass. 165, 390 N.E.2d 1107 (1979), motions for a new trial, filed on September 23, 2009, and July 26, 2012, were considered by Frank M. Gaziano, J.
A request for leave to appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk.
Order denying motion for a new trial affirmed.
Ryan M. Schiff, Committee for Public Counsel Services, for William J. Johnson.
Matthew Sears, Assistant District Attorney, for the Commonwealth.
Robert L. Sheketoff, for Enfrid Brown, Jr., was present but did not argue.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[24 N.E.3d 1027] Hines, J.
The defendants, Enfrid Brown, Jr., and William J. Johnson, were indicted on charges of murder and armed entry with the intent to commit a felony in connection with the 1973
death of the victim, Hakim A. Jamal. The defendants were convicted by a jury of murder in the first degree at their first trial. We reversed the first convictions on grounds not pertinent to this appeal and remanded for a new trial. Commonwealth v. Brown, 367 Mass. 24, 32, 323 N.E.2d 902 (1975) ( Brown I ). They were retried and again convicted. We affirmed the second convictions. Commonwealth v. Brown, 378 Mass. 165, 166, 390 N.E.2d 1107 (1979) ( Brown II ).
After various proceedings, which we detail below, the defendants filed a third motion for a new trial in July, 2012, arguing that the jury's initial report of not guilty verdicts in the first trial was in fact an acquittal of murder in the first degree on the theory of deliberate premeditation and the retrial on that same theory in the second trial violated their double jeopardy rights. In a thoughtful memorandum of decision, a Superior Court judge denied the motion. The defendants petitioned a single justice of this court, pursuant to the " gatekeeper" provision of G. L. c. 278, § 33E, for leave to appeal. The single justice allowed the appeal to proceed on the question whether the jury's initial verdict has the double jeopardy consequence, under Federal constitutional law and the statutory and common law of Massachusetts, of barring retrial on a theory of premeditated murder. For the reasons explained below, we conclude that the defendants suffered no violation of their double jeopardy rights and affirm the denial of the motion for a new trial.
We set forth the facts the jury could have found, as detailed in Brown II :
" On May 1, 1973, Hakim Jamal occupied a third-floor apartment with Hane Jamal, who described herself as Hakim's wife in a 'spiritual' but not a legal sense, and with Crab Jamal, Kidogo Jamal, Linda Jacobs, and Linda's son Anthony Jacobs. On the morning of May 1, ... Kidogo had an argument with one Louella Burns (also known as Sister Cissy).
" Burns informed members of an organization called 'De
Mau Mau' of her argument with Kidogo. Included among the members of the organization were [24 N.E.3d 1028] the ... defendants [and John Clinkscales], as well as [Phillips] Key and [Isaac] Mitchell. These five individuals procured various firearms including handguns, carbines, and a rifle and drove to the Jamal apartment about 11 p.m. Leaving their car locked but with the engine running, all five ascended the stairs carrying the firearms. Key knocked on the door of the Jamal apartment and Kidogo answered. A German shepherd dog left the apartment while the door was open. Kidogo attempted to close the front door, ran into the living room, and blocked the living room door closed with his body. Hakim, Hane, and Crab were also present in ...