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Commonwealth v. Bryan

Supreme Judicial Court of Massachusetts, Suffolk

January 20, 2017

COMMONWEALTH
v.
ATUNBI BRYAN.

          Heard: November 7, 2016.

         Practice, 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.

         The case was heard by Duffly, J.

          Nicholas Brandt, Assistant District Attorney (Gregory D. Henning, Assistant District Attorney, also present) for the Commonwealth.

          Paul J. Davenport for the defendant.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          GAZIANO, J.

         The 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.

         At 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.[1] Defense counsel elicited this testimony anyway. The judge declared a mistrial, over the defendant's repeated objection.

         The 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.

         Because 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.

         1. Prior proceedings.

         In 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 testimony.

         a. Motion to suppress.

         In May, 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.

         Daniely 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.

         While 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.[2] 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 ...


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