Heard: September 7, 2017.
Criminal, Double jeopardy, Indictment, Conduct of prosecutor,
Argument by prosecutor. Robbery. Civil action commenced in
the Supreme Judicial Court for the county of Suffolk on
December 19, 2016.
case was considered by Lowy, J.
Merritt Schnipper for the defendant.
Bala, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker,
petitioner, Jahmal Brangan, appeals from the denial, by a
single justice of the county court, of his petition for
relief from the denial of his motion to dismiss the
indictment against him for armed robbery while masked by the
trial judge, after the Commonwealth's closing argument
led to a mistrial. Brangan argues that principles of double
jeopardy forbid his retrial because the Commonwealth did not
present sufficient evidence to sustain a guilty finding or,
alternatively, the prosecutor's misconduct was so
egregious that it warranted a dismissal of the indictment. We
affirm the decision of the single justice.
following facts are taken from Commonwealth
v. Brangan, 475 Mass. 143 (2016), and from
the trial record.
January, 2014, a bank in Springfield was robbed. The robber
entered the bank with his face obscured by a hat and
sunglasses. He was wearing gloves. His nose and his cheeks
were nonetheless visible. He approached a teller's
window, but that window was closed so the teller asked him to
move to another teller window. He then approached a second
teller window and handed a note to that teller. The note
stated that the robber had a weapon and demanded all of the
teller's cash. The teller complied and gave the robber an
envelope with less than $1, 000 in cash. The robber fled, and
the police arrived shortly thereafter. The police processed
the note for fingerprints within hours of the crime. On the
note, the police found Brangan's thumbprint. They also
found a right palm print that was unusable for determining a
match. Brangan was arrested.
trial, both bank tellers testified about the robber's
appearance. The tellers each described her recollection of
the robber's race, skin tone, and nose shape and size.
One teller described the robber as having acne scars on his
cheeks. The Commonwealth also played a surveillance video
recording of the robbery.
police officer testified about the fingerprint testing on the
note. The officer explained that the powder used to discover
the thumbprint can only uncover recent fingerprints, allowing
the inference that Brangan touched the note recently, but the
officer could not provide a more specific timeline. The
officer also opined that, because of the position of the
right palm print, the author of the note was likely
left-handed. The prosecutor, during the Commonwealth's
closing argument, stated: "[I]t would be impossible to
write the note right-handed and put that mark on the note.
Left-handed, someone holding the paper [sic].
You've got to watch . . . Brangan the whole trial take
his notes left-handed." Brangan objected because no
evidence about his alleged left-handedness was introduced
during trial, and he moved for a mistrial. The trial judge
issued a curative instruction and took Brangan's motion
for a mistrial under advisement. After the jury returned a
guilty verdict, the judge granted Brangan's motion for a
mistrial but did not dismiss the indictment, allowing the
Commonwealth to move to retry him. Discussion.
Common-law double jeopardy prohibits the Commonwealth from
prosecuting a defendant again for the same crime.
Marshall v. Commonwealth, 463
Mass. 529, 534 (2012). However, "[d]ouble jeopardy
concepts do not bar second trials in all instances."
Thames v. Commonwealth, 365 Mass.
477, 479 (1974). After a mistrial, the Commonwealth may retry
a defendant if it has presented evidence at the first trial
that, if viewed in the light most favorable to the
Commonwealth, would be sufficient for a rational trier of
fact to find the defendant guilty of the crime charged beyond
a reasonable doubt. Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979). If the
evidence was sufficient to support a finding of guilt, the
defendant still may not be retried if the prosecutor's
misconduct in the first trial was so egregious that a
dismissal with prejudice is warranted to discourage further
misconduct of the same kind. Commonwealth
v. Durand, 475 Mass. 657, 672-673 (2016),
cert, denied, S.Ct. (2017), quoting Commonwealth v.
Merry, 453 Mass. 653, 666 (2009).
conclude that the evidence the Commonwealth presented in the
first trial was legally sufficient to support a guilty
finding and the alleged prosecutor's misconduct in
closing argument was not ...