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Brangan v. Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

November 14, 2017


          Heard: September 7, 2017.

         Practice, 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.

         The case was considered by Lowy, J.

          Merritt Schnipper for the defendant.

          Amal Bala, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         The 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.


         The following facts are taken from Commonwealth v. Brangan, 475 Mass. 143 (2016), and from the trial record.[1]

         In 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.

         At 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.

         A 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).

         We 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 ...

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