Heard: November 7, 2016.
Criminal, Mistrial. Supreme Judicial Court,
Superintendence of inferior courts. Civil action
commenced in the Supreme Judicial Court for the county of
Suffolk on February 26, 2016.
case was heard by Duffly, J.
Nicholas Brandt, Assistant District Attorney (Gregory D.
Henning, Assistant District Attorney, also present) for the
J. Davenport for the defendant.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
defendant was one of three occupants of a van that was
stopped by a Boston police officer for a traffic violation
(driving without headlights) in the early morning hours of
April 12, 2014. Police officers issued an exit order, as a
safety precaution, based on certain facts that unfolded
during the motor vehicle stop. When the defendant, the rear
seat passenger, got up to get out of the van, a police
officer observed a handgun underneath his right thigh.
trial, the judge issued an explicit order precluding defense
counsel from introducing evidence that the front seat
passenger in the van previously had been convicted of
unlawful possession of a firearm. Defense counsel elicited
this testimony anyway. The judge declared a mistrial, over
the defendant's repeated objection.
defendant subsequently moved to dismiss the charges on double
jeopardy grounds, contending that there had been no manifest
necessity to declare a mistrial, and that the judge erred in
not pursuing a less severe option to cure the introduction of
the precluded testimony, such as a curative instruction. A
different Superior Court judge denied the motion, and the
defendant filed a petition pursuant to G. L. c. 211, §
3, in the county court. The single justice determined that
the trial judge had erred in concluding that there was a
manifest necessity to declare a mistrial. The Commonwealth
appealed to this court from the single justice's
allowance of the defendant's petition.
a determination that a mistrial was manifestly necessary is
committed to the sound discretion of the trial judge, a
reviewing court examines such a decision only for abuse of
discretion. See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). "We do not disturb the judge's
ruling 'simply because [we] might have reached a
different result; the standard of review is not substituted
judgment.'" Cruz v. Commonwealth, 461 Mass.
664, 670 (2012), quoting Bucchiere v. New England Tel.
& Tel. Co., 396 Mass. 630, 641 (1986). We conclude
that there was no abuse of discretion in the judge's
decision to declare a mistrial, on the ground of manifest
necessity, after defense counsel intentionally violated her
order that the evidence concerning the other passenger's
prior conviction was excluded for all purposes, and that the
single justice applied a substituted judgment standard in
deciding otherwise. Accordingly, we remand the matter to the
county court for entry of an order denying the
defendant's G. L. c. 211, § 3 petition.
order to understand the circumstances surrounding the
judge's order prohibiting inquiry into the other
passenger's criminal history, we first must address
testimony presented at the hearing on the defendant's
motion to suppress evidence seized after the stop, and the
Commonwealth's motion in limine to exclude such
Motion to suppress.
2015, a Superior Court judge who was not the trial judge
(motion judge) conducted an evidentiary hearing on the
defendants' motions to suppress. Boston police Officer
Sean Daniely and two other officers testified at that
hearing. Daniely testified that at 1:30 A.M. on April 12,
2014, he stopped a van on Blue Hill Avenue in the Mattapan
section of Boston for being operated without its headlights
illuminated. There were three occupants in the van: Sedeke
Williams, the driver; Derek Brown, the front seat passenger;
and the defendant, in the rear bench seat behind the driver.
The defendant and Brown were not wearing seat belts.
obtained identification from the three occupants in order to
write traffic citations. He entered their names into his
police cruiser's on board computer (referred to as a
mobile data terminal or MDT) and learned that Brown, whom he
had recognized as someone he had seen previously, had a prior
conviction for a firearms offense. The defendant and Williams
did not have criminal records.
Daniely was at his cruiser, two night club bouncers walked
across Blue Hill Avenue and approached Boston police Officer
Gregory Vickers, who had arrived to assist. The bouncers told
Vickers that they worked at a nearby night club, and had just
ejected the occupants of the van from the club. They said
that "someone" outside ...